INFLUENCE AND
INTEGRITY
LOBBYING AND ITS
REGULATION IN IRELAND
Transparency International Ireland (TI Ireland) is the Irish chapter of
the worldwide movement against corruption. It was founded in 2004.
Its vision is an Ireland that is open and fair and where entrusted
power is used in the interest of everyone.
www.transparency.ie
Transparency International Ireland would like to acknowlege the following
members of its expert advisory group for their comments, observations and
expertise in preparing this report: Mark Carpenter (PhD researcher,TCD);
Michele Crepaz (PhD researcher, TCD); Gavin Elliott BL; Dr Conor
McGrath (public affairs professional and academic expert); Pat Montague
(communications professional); Professor Gary Murphy (senior lecturer in
government, DCU).
Lead researcher and editor: Nuala Haughey
Senior assistant researcher: Conor McCann
Co-editor: John Devitt, Chief Executive Transparency International Ireland
Research Review: Suzanne Mulcahy, Transparency International Secretariat
Publisher: Transparency International Ireland
© 2014 Transparency International Ireland. All rights reserved.
Cover photo: iStockphoto/DNY59
Every effort has been made to verify the accuracy of the information
contained in this report. All information was believed to be correct as of
November 2014. Nevertheless Transparency International Ireland cannot
accept responsibility for the consequences of its use for other purposes or
in other contexts. Policy recommendations reflect TI Ireland’s opinions.
This project has been funded with support from the European Commission.
This publication reflects the views only of the author, and the European
Commission cannot be held responsible for any use which may be made of
the information contained therein.
Co-funded by the Prevention of and Fight against
Crime Programme of the European Union
TABLE OF CONTENTS
TABLE OF CONTENTS ......................................................................................................................................... 1
I. EXECUTIVE SUMMARY AND RECOMMENDATIONS ...................................................................................... 3
INTRODUCTION ................................................................................................................................................. 3
KEY FINDINGS ................................................................................................................................................... 4
Lobbying in Ireland .......................................................................................................................................... 4
Regulation of Lobbying .................................................................................................................................... 6
Ethics in Public Office ...................................................................................................................................... 6
Consultation and public participation in decision-making ................................................................................ 7
Proactive Transparency................................................................................................................................... 7
RECOMMENDATIONS ....................................................................................................................................... 8
Regulation ....................................................................................................................................................... 8
Ethics in Public Office ...................................................................................................................................... 9
Proactive Transparency................................................................................................................................. 10
Consultation and public participation in decision-making .............................................................................. 10
2. INTRODUCTION............................................................................................................................................... 11
3. MAPPING THE LOBBYING LANDSCAPE IN IRELAND ................................................................................ 12
NATIONAL CONTEXT - POLITICAL, SOCIAL AND LEGAL............................................................................. 12
Lobbying in Ireland is a ‘dirty word’ ............................................................................................................... 12
Clientelism and patronage deeply ingrained in political system .................................................................... 13
A failure to regulate lobbying – until now ....................................................................................................... 15
INTENSITY AND SCALE OF LOBBYING ......................................................................................................... 16
Interest group activity in Ireland – insiders and outsiders .............................................................................. 16
Privileged access and influence for business interests ................................................................................. 17
Lobbying ‘from the inside’: the influence of expert and advisory groups ....................................................... 17
Professional lobbyist sector – a growth area ................................................................................................. 18
Lobbying techniques and elite insider lobbying – the ‘word in an ear’ approach ........................................... 19
Case Study: The Ultimate Insider – Access and Influence in the Corridors of Power ................................... 20
CULTURAL UNDERSTANDING OF LOBBYING .............................................................................................. 21
SELF-REGULATION OF LOBBYISTS ACTIVITIES ......................................................................................... 22
Industry self-regulation – well-intentioned but ineffectual .............................................................................. 22
WATCHDOGS: THE ROLE OF MEDIA AND CIVIL SOCIETY IN MONITORING LOBBYING ......................... 24
Case Study: Public Health versus Private Wealth – Lobbying by the Drinks Industry ................................... 25
4. REGULATING LOBBYING: TRANSPARENCY, INTEGRITY AND EQUALITY OF ACCESS........................ 27
TRANSPARENCY ............................................................................................................................................. 27
Lobbying without a trace – influence closed to external scrutiny ................................................................... 27
Proactive disclosure of information – a mixed picture in the public sector..................................................... 30
TOWARDS TRANSPARENCY IN LOBBYING: A PUBLIC REGISTER ............................................................ 31
Lobbying activity that will be captured in a register of lobbying ..................................................................... 31
Exemptions could undermine utility of register as a one stop shop for tracking influence ............................. 32
The lobbied – are too many lobbying targets excluded? ............................................................................... 33
Powers of SIPO in relation to register of lobbying activities........................................................................... 34
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Case Study: The Power of Elites – The Impact of the Financial Services Sector on Public Policy ............... 35
FOSTERING INTEGRITY ................................................................................................................................. 37
Substandard safeguards to prevent private interests interfering with public duties ....................................... 37
Inadequacies of existing codes of conduct for managing conflicts of interest ............................................... 38
Table 1: Categories of risks to integrity in public decision-making that are regulated in the main codes of
conduct for public life ..................................................................................................................................... 40
Shortcomings in supervision and enforcement of ethics rules ....................................................................... 41
Sanctions for breaches of rules failing to deter unethical behaviour?............................................................ 42
Table 2: Complaints to SIPO and Own-Initiative Enquiries under the Ethics Acts from 1995 to 2013.......... 42
Failure to control the ‘revolving door’ phenomenon ....................................................................................... 42
Revolving door restrictions not robust enough .............................................................................................. 44
EQUALITY OF ACCESS: LEVELLING THE PLAYING FIELD.......................................................................... 44
5. METHODOLOGY NOTE................................................................................................................................... 46
Definitions ...................................................................................................................................................... 46
Data Collection and Validation ...................................................................................................................... 46
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I. EXECUTIVE SUMMARY AND
RECOMMENDATIONS
INTRODUCTION
A wide range of individuals and interest groups are engaged in lobbying in Ireland. They include
hundreds of trade unions, representative bodies and industry groups; thousands of community and
voluntary organisations and charities; as well as professional lobbyists and private business interests.
These interest groups and individuals often play a positive and legitimate role in our democracy,
offering valuable insights, expertise and feedback that inform and enrich the policy and decisionmaking processes.
Despite these clear benefits, lobbying is widely viewed in negative terms as a means of advancing
private gains at the expense of the public interest. This perception is not without justification. As
Ireland’s recent economic and banking crises have shown, unchecked and secretive lobbying by
powerful individuals and companies can lead to unfair competition as well as regulatory and policy
‘capture’.
International Monetary Fund research has made a strong connection between lobbying by financial
institutions and mortgage lending in the run-up to the global financial crisis. It noted that the
‘prevention of future crises might require weakening political influence of the financial industry or
1
closer monitoring of lobbying activities to understand the incentives better’.
In Ireland, a number of lobbying-related controversies have eroded public trust in the legitimacy of the
political system and fuelled perceptions that policy-making is unduly influenced by a ‘golden circle’ of
powerful and highly connected insiders.
This study, Influence and Integrity: Lobbying and its Regulation in Ireland, provides a detailed
assessment of the lobbying landscape in Ireland. It is published at a crucial moment when Ireland’s
first lobbying legislation is under consideration by the Oireachtas. The research is based on a
methodology created by Transparency International as part of a project involving the assessment of
2
lobbying regulations and practices in 19 European countries.
The report assesses Ireland’s efforts to regulate the phenomenon from three critical dimensions.
Firstly, we ask whether there is sufficient transparency in relation to how public decisions are made
and who seeks to influence them. Secondly, we assess the effectiveness of current efforts to promote
integrity in public life and also among lobbyists. Thirdly, we examine the extent to which policy
formation is open and responsive to a plurality of interests through formal measures to ensure
equality of access to the democratic decision-making process.
For each of these dimensions, this study firstly assesses the current situation. It then explores how
the situation will change if the Registration of Lobbying Bill 2014 - which provides for an online
register of lobbying activities - is passed in its current form.
1
IMF Working Paper, Research Department, A Fistful of Dollars: Lobbying and the Financial Crisis, December 2009
www.imf.org/external/pubs/ft/wp/2009/wp09287.pdf
The participating countries are Austria, Bulgaria, Cyprus, Czech Republic, Estonia, France, Germany, Hungary, Ireland, Italy,
Latvia, Lithuania, Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, and the United Kingdom.
2
3
Our findings show that the planned register will shed welcome light in relation to who is seeking to
influence government decision-making. But it is only one measure among wider reforms identified in
this report that are required to open decisions up to fuller public scrutiny, promote integrity in public
life in general and safeguard against lobbying-related risks in particular, including undue or improper
influence.
While the political system is not the primary focus of this report, it is abundantly clear that
shortcomings in Ireland’s political structures, the tolerance of patronage and cronyism in politics and
the concentration of power at executive level have contributed to a political environment in which
power and the policy-making process have been abused for political or private gain. This environment
will prosper as long as there is a lack of public understanding over how public policy is (and should
be) made and while there is inadequate legislative oversight of government.
This aim of this report is to help promote better understanding of how policy is being shaped through
lobbying and to recommend ways of promoting more open and accountable decision-making. To this
end, we put forward a set of key recommendations and solutions suggesting how the weaknesses
identified and discussed in this study could be tackled. If we are to build public trust in democratic
processes, then transparency, accountability, integrity and plurality must be the defining features of all
public decision-making. The ultimate goal is to achieve better public policy outcomes for society at
large.
KEY FINDINGS
Lobbying in Ireland
There is vibrant interest representation in Ireland, with groups and individuals exercising their
right to participate in our democratic process through lobbying decision-makers.
These include representatives of various sectors including farmers, business associations, and
representative groups, as well as trade unions, faith-based groups, and civil society organisations
including charities. Ireland’s small size and the fact that politicians are generally accessible at both
constituency and national level means that niche or local interest groups can often ‘punch above their
weight’. However, the diversity of lobbying activity that takes place and the general openness of the
political system to a range of interests does not in itself guarantee an even playing field when it comes
to the influence of various stakeholders over public decision making. The professional lobbying
industry has grown in the past several decades. These public affairs professionals – many of them
former politicians or political advisers – mostly represent private interests, including large
multinationals corporations.
Lobbying techniques are varied and significant lobbying efforts are beyond public scrutiny.
Formal lobbying takes place through a variety channels, both open and closed. Open channels
include direct communications with decision-makers, participation in public hearings and
consultations, public and media campaigns and grass roots activities. Some groups carrying out grass
roots activities receive funding from industry including tobacco and alcohol manufacturers. Lobbying
also takes place behind the scenes -– outside of formal participation channels and hidden from public
scrutiny. This includes ‘political insiders’ using their connections to access and seek to influence
decision-makers.
4
Lobbying from the inside by private interests through advisory or expert groups and
taskforces is of particular concern.
Lobbying from the inside by private interests can take place through advisory or expert groups and
3
taskforces set up to advise government or public bodies. Members appointed to such bodies often
give up significant amounts of their time to these voluntary public duties. However, the fact that
corporate executives and lobbyists can sit on such groups in a personal capacity poses a clear risk
that concealed interests may have undue influence over policy-making. There is no statutory
obligation to have a balanced composition of membership on expert or advisory groups or to ensure
their work is conducted in a transparent manner. The Organisation for Economic Cooperation and
Development (OECD), has identified the influence of private interests through expert or advisory
4
groups as ‘an emerging risk to the integrity of policy-making’. The planned lobbying law provides for
a ‘transparency code’ for groups established by a Minister or a public body. However, even with the
planned law, corporate executives and lobbyists will be free to join expert groups without having to
declare their membership of these groups.
Select interests appear to enjoy unfair advantages in terms of access to decision-makers and
influence over public policy.
Corporate interests in particular wield political influence that reflects their perceived financial or
economic importance. Corporations can employ teams of lawyers and professional lobbyists and are
more or less guaranteed access to senior decision-makers and politicians. The case studies in this
report show that the policy influence they enjoy has a real bearing on the lives of all citizens. For
example, the pharmaceutical and alcohol industries appear to have significant influence over aspects
of national policy. Likewise, institutional arrangements have allowed sectoral interests to be effectively
co-opted into public policy-making. This includes trade unions, employers’ organisation and
community and voluntary groups involved in the now-defunct Social Partnership process. Longstanding institutional arrangements have also ensured that professionals from the financial sector
have regular access to regulators and decision-makers. Their influence over key aspects of economic
policy is documented in this report. In particular, the Clearing House Group of the International
Financial Services Sector appears to have played a important role in blocking the introduction in
Ireland of a Financial Transaction Tax. Naturally, it is important for Government to take into account
the needs of businesses in formulating national policies. However, this must be done in as
transparent a manner as possible to ensure public confidence in decision-making. The Irish public
5
already perceives that there is too close a relationship between business and politics.
Attempts at self-regulation to date are limited in scope and have had limited impact.
An industry code developed by the Public Relations Institute of Ireland (PRII), which represents PR
professionals and lobbyists, suffers from the fact that it is entirely voluntary and applies only to its
1,000 members. The code was introduced in 2003 following controversy over allegations of influencepeddling by one of the institute’s members. No complaints have been filed against PRII members
since the code was introduced and the institute has not conducted any investigations for violations of
the code. Notwithstanding the apparently limited impact of the PRII’s code, it is one of the few
organisations to have attempted to create rules around lobbying by its members. In contrast, there is
no evidence of any concerted sector-wide efforts by non-profit organisations, trade unions, the legal
profession or business at large to promote ethical lobbying by their members or staff.
3
Following the OECD definition, here an advisory or expert group refers to any committee, board, commission, council,
conference, panel, task force or any subcommittee set up by government (executive, legislative or judicial branch) or any of its
subgroups to provide it with advice, expertise or recommendations.
4
OECD, Building trust through fairer decision making: In-depth report on progress made in implementing the OECD
Recommendation on Principles for Transparency and Integrity in Lobbying, p 64, 2014 (forthcoming).
5
European Commission, Special Eurobarometer 397, February 2014
http://ec.europa.eu/public_opinion/archives/ebs/ebs_397_en.pdf
5
Regulation of Lobbying
The introduction of an online public register of lobbying activities is a welcome transparency
measure, but is not a panacea.
The planned introduction of a ‘register of lobbying activities’ is a significant step towards increased
transparency in this area. Lobbyists will be required to register with the Standards in Public Office
Commission and file online returns on their lobbying activities three times a year. The register’s main
value lies in the fact that it could become a ‘one-stop-shop’ that would allow citizens to track who is
seeking to influence public decision-making, and about what. If this register is to make a difference, it
should aim to capture as complete a picture as possible of lobbyists’ policy inputs on any particular
issue. The register is only one transparency measure among many others identified in this report that
are required to open decisions up to fuller public scrutiny.
Ethics in Public Office
Efforts to safeguard the public interest in decision-making are piecemeal and ineffective.
Laws and guidelines which set ethical behavioural standards for public officials are unduly complex
and inadequate. Sanctions for breaches of these rules do not represent a sufficient deterrent, while
oversight structures are also weak. Furthermore, there is not enough emphasis on ethics training for
public officials and elected representatives. There appears to be little effort to promote understanding
among officials of the importance of rules and principles around the disclosure private interests, the
managing of conflicts of interest, or interactions with lobbyists. One former junior minister interviewed
for this research stated that, when it comes to official meetings with lobbyists at such senior levels
there are no guidelines or established practices -– it is a case of ‘anything goes’.
The largely unrestricted flow of personnel from the political world to the worlds of business
and lobbying poses a risk to fairness and impartiality in public decision-making.
While the movement of personnel between the public and private sectors can help in the healthy
exchange of ideas and experience, these so-called ‘revolving door’ practices pose particular risks of
conflicts of interest. Serving public officials may be more inclined to give preferential treatment to a
business or industry with an eye on future employment prospects. Likewise, former public officials
who accept employment in the private sector might seek to influence their former colleagues in a way
that favours their new employer or client. Even where there is no abuse, the public perception of a
conflict of interest can undermine public confidence in the independence and integrity of their public
officials. These risks are generally controlled by both pre-term and post-term employment restrictions,
known as moratoria or ‘cooling-off’ periods. There are no pre-term employment restrictions in place in
Ireland, a situation that allows lobbyists to move freely into the public sector, where they could allow
their previous private sector experience to influence their work. 6 It is particularly noteworthy that
government Ministers are not subject to the same revolving door restrictions that apply to civil
servants and local authority officials. The Registration of Lobbying Bill 2014 introduces targeted postterm restrictions for key public officials, including Ministers and special advisers, on carrying out
lobbying activities for one year after they leave public service. However, the government has yet to
deliver on its Programme for Government pledge to bring in a ‘cooling-off’ period of at least two years
7
for key public officials moving to paid positions in the private sector.
6
OECD, Building trust through fairer decision making: In-depth report on progress made in implementing the OECD
Recommendation on Principles for Transparency and Integrity in Lobbying, p 63, 2014 (forthcoming).
7
The Programme for Government 2011-2016 states: We will amend the rules to ensure that no senior public servant (including
political appointees) or Minister can work in the private sector in any area involving a potential conflict of interest with their
former area of public employment, until at least two years have elapsed after they have left the public service.
6
Consultation and public participation in decision-making
Stakeholder input is routinely provided for across a range of decision-making bodies, but
there are not sufficient structures in place to ensure equitable access to the policy-making
process
Ensuring that all stakeholders have fair and equitable access to decision making processes can lead
to balanced policy-making in the public interest. Government departments, local authorities and other
public bodies often run multi-stakeholder consultations as well as public consultations. There was
consensus among public affairs consultants and in-house lobbyists interviewed for this research that
the Irish policy-making system is generally open to their input and expertise. However, some
interviewees also noted that the extent of access varies somewhat depending on the culture of
different government departments as well as the attitudes of particular senior civil servants and
Ministers. While examples exist of imaginative and inclusive consultation processes, there are also
examples of public consultations which amount to little more than a ‘box-ticking’ exercises, usually in
the form of a webpage notice calling for comments to be submitted on a document by a certain
deadline. Overall, there appears to be a degree of informality in relation to stakeholder consultations
that gives policy makers much needed flexibility in deciding when and how to consult. However, too
much informality can in practice lead to a lack of rigour in terms of ensuring balanced stakeholder
input into policy or legislation.
Proactive Transparency
There is no framework for proactive transparency across the public sector, and practices vary
considerably.
Transparency in public life can help promote ethical behaviour and deter undue influence in the
exercise of public power. Freedom of Information plays an important role in this area, allowing citizen
and media oversight of some aspects of decision making. However, generally this information is
disclosed on an ex-post-factum basis, coming too late to change decisions that have already been
taken. It is also apparent that access to information in this reactive form is not in itself sufficient to
foster a culture of openness within public bodies. Currently, insufficient attention is being paid to
proactive transparency across the public service. While there are some good examples of routine
proactive release of information from public bodies, local authorities and government departments,
there is no common standard or unified approach in this area. Practices vary in relation to proactive
public disclosure of written submissions received during consultations run by government
departments on legislative or policy proposals. The Freedom of Information Act 2014 will allow for
more standardised proactive disclosure by public bodies of routine information outside of FOI,
including official diaries, decision-making procedures and financial and procurement information. 8
8
See:
http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/%28indexlookupdail%29/20140408~WRL?op
endocument
7
RECOMMENDATIONS
Regulation
1. Establish a mandatory two year ‘cooling-off’ period for senior public officials at local and national
level, including special advisors and Ministers. Resigning or retiring officials should be required to
receive permission from an independent, well-resourced and appropriately powerful oversight body
before taking up a private sector position where a real or perceived conflict of interest could arise.
Penalties including fines and publication of the decision should be imposed on any former public
official who fails to comply with the body’s ruling or to deliver information sought by it. This would help
address conflicts of interest and the ‘sale of expertise’ by retiring public servants to the private sector.
It should also help build public confidence in the integrity of the public policy process. 9
2. Ensure that the planned lobbying register is carefully designed and properly implemented with
sufficient resources to ensure meaningful verification and oversight of lobbying returns. The online
register should made available in a format that allows for the comprehensive capture of information.
The public should be able to search under various fields including: by lobbying organisation; by policy
area; by legislation; by official; and by public body lobbied. It should be available in an open machinereadable format. Each registered lobbyist, whether an individual or an organisation, should be
allocated a unique identifier code to allow their lobbying activities to be accurately tracked. The
register should also allow lobbyists to upload documents shared with public officials in their online
returns. The draft law does not require registered lobbyists to include supporting documents in their
online returns. However, if the database design allowed for this, it would likely encourage lobbyists to
make more comprehensive disclosures on a voluntary basis.
3. Strengthen the Registration of Lobbying Bill 2014 by closing off potential loopholes identified in this
report. These loopholes will diminish the potential of the planned lobbying register as a
10
comprehensive database of all significant efforts to influence key decision-makers. In addition, TI
Ireland recommends that lobbyists also be required to disclose on the register:
•
•
•
Policy submissions and any documents that they have shared with public officials aimed at
influencing legislation or government decisions. These should be published on the new
register. Such a measure would help inform debate on public policy.
Financial data on sources of client or donor income should also be published. This would
allow the public to better understand how money is influencing public policy and help
11
regulatory bodies address any risks of influence peddling.
Any activities undertaken on behalf of political parties, elected officials or election candidates.
This would include any voluntary support a registered lobbyist has given in terms of
public/media relations, fundraising, strategic advice and research to parties and candidates.
4. Give the Standards in Public Office Commission (SIPO) more explicit powers in relation to
proactive verification of lobbying activities reported by registered lobbyists, including the power to
conduct spot checks and to ‘name and shame’ lobbyists who contravene the new law. SIPO should
also be empowered to receive complaints against lobbyists from any member of the public.
5. Carry out sustained awareness-raising and outreach activities to generate meaningful awareness
of the register among interest groups and individuals who will be required to register their lobbying
9
Norway’s independent Quarantine Commission is a best practice example. It supervises post-term employment of politicians.
It can impose liquidated damages if a politician fails to deliver information on potential transition to a new position.
For further detail, see TI Ireland’s submission on the Registration of Lobbying Bill 2014 on www.transparency.ie
11
The sale of influence, trading in influence or ‘influence peddling’ involves ‘the promising, giving or offering, directly or
indirectly, of any undue advantage to anyone who asserts or confirms that he or she is able to exert an improper influence’ over
the decision-making of a public official. See http://conventions.coe.int/Treaty/en/Treaties/html/173.htm for reference to Article
12 of the Council of Europe Criminal Law Convention on Corruption.
10
8
activities. If this vital work is not adequately funded, there is a real risk that the lobbying registration
system will fail to deliver on its promise.
6. Introduce a statutory code of conduct for all lobbyists aimed at establishing principles of
professional conduct and good practice. The Registration of Lobbying Bill 2014 empowers, but does
not oblige, SIPO to produce a code of conduct in consultation with lobbyists. SIPO should take this
opportunity to establish a model code which clearly sets out specific behavioural principles expected
of all those who lobby.
7. Lobbyists themselves should take responsibility for lobbying responsibly and adhere to the
registration requirements in the planned law and any future code of conduct introduced under it. They
should be open about their lobbying activities and voluntarily include additional information and
supporting documentation in the planned lobbying register, including financial information. This kind of
proactive disclosure will help to forge a cultural shift towards more transparency among those who
seek to influence decision-making.
Ethics in Public Office
1. Publish and promote a clear high-level statement of principles as the basis of the ethical standards
for all public officials. Based upon these principles, introduce clear tailor-made codes of conduct for
different classes of public official at national and local level. These should include detailed behavioural
guidance in relation to interactions with lobbyists.
2. Ensure that all public officials receive appropriate training and advice on ethical standards in public
life including conflicts of interest and ethical business-government relationships. This should include
clear guidance on how they are expected to engage with lobbyists, including professional lobbyists
and those who are former public officials. More emphasis on prevention preventative measures in
general would ensure that ethical standards come to be seen as a vital and central component of
sound public administration, rather than a bureaucratic formality.
3. Make declarations of interests by elected and senior appointed public officials at both national and
local government level available online in a single portal and in machine-readable format (with
necessary protections for individuals’ private lives). The publication of declarations of interests would
allow for more public scrutiny, thereby helping in the enforcement of conflict of interest rules.
4. Make it a criminal offence for public officials to fail to declare an interest under the Ethics Acts or to
make false or misleading interest disclosures. In its final report in 2012, the Mahon Tribunal observed
that the fact that these are not currently criminal offences has repercussions for the civil recovery of
12
assets obtained through corrupt conduct.
5. Require all public officials to make accurate records of their contacts with lobbyists and keep them
for as long as they are required for accountability purposes. If records do not exist then there should
be a presumption that they have been destroyed or there was negligence or maladministration. More
generally, the Government should also consider introducing a statutory duty to make and keep
13
records for all public authorities as part of its records management framework.
12
The Tribunal noted that under Part 15 of the Local Government Act 2001, it is already an offence to fail to make declarations
or to make false/misleading declarations. See Mahon Justice Alan, Final Report of the Tribunal of Inquiry into Certain Planning
Matters and Payments Vol. IV, p 2607.
13
The statutory basis for a requirement to keep records exists in Queensland, Australia. Section 7 of the Public Records Act
2002 states that all public authorities must ‘make and keep full and accurate records’ of their activities. The responsibility for
ensuring compliance with this requirement falls to the executive officer of each authority. See
https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/P/PublicRecA02.pdf There is also an information standard that
accompanies the legal requirement. See http://www.qgcio.qld.gov.au/products/qgea-documents/548-information/2357recordkeeping-is40
9
Proactive Transparency
6. Information regarding meetings between lobbyists/interest groups and senior officials or Ministers
should be routinely recorded and proactively published. This should include calendars and agendas.
The primary responsibility for this sort of proactive transparency must rest with the public officials and
representatives who have a duty to act with integrity and serve the public interest.
7. The Houses of the Oireachtas Commission, in collaboration with the Standards in Public Office
Commission, should consider creating a web-based ‘legislative footprint’ to allow the public to see the
14
input of different groups and individuals in shaping laws. This would summarise all external input,
including submissions received and contact between lobbyists and public officials/representatives. It
would provide an incentive for policy makers to seek out a balanced representation of views in their
decision-making processes. Ideally the legislative footprint would be updated in close to real time. It is
worth noting that the government made a commitment to introduce a legislative footprint in its first
15
Open Government Partnership National Action Plan.
8. Establish clear rules for all expert and advisory groups to allow proper scrutiny of their work,
ensure balanced composition and stakeholder diversity, and identify and control conflicts of interest.
This would involve publishing open calls for nominations/candidacies for expert and advisory groups
through the Public Appointments Service website. Terms of reference, agendas and minutes of
meetings for all such bodies should be routinely published. Lobbyists and corporate executives should
be prohibited from sitting on advisory and expert groups in their personal capacities.
Consultation and public participation in decision-making
9. Introduce statutory guidelines for government departments, public bodies and local authorities to
ensure that public consultations offer meaningful opportunities for participation from as wide a crosssection of society as possible. Introduce a legal requirement on all public bodies to publish the results
of consultation processes, including the views of participants in the consultations.. This should include
procedures to allow citizens to learn which submissions influenced the outcome of the decision16
making process and why. This would build upon an existing government commitment the Open
Government Partnership National Action Plan to develop a code for public engagement and
17
consultation with citizens, civil society and others by all public bodies. More diversity and
contestability in policy-making would help diminish the power of vested interests, including elements
18
of the political establishment and the bureaucracy itself.
14
For more information on legislative footprints, see http://www.aalep.eu/making-case-legislative-footprint-ep and
http://www.transparency.org/files/content/corruptionqas/legislative_footprint.pdf
15
Department of Public Expenditure and Reform, Open Government Partnership National Action Plan 2014-2016
http://www.per.gov.ie/minister-brendan-howlin-td-publishes-irelands-first-open-government-partnership-national-action-plan/.
The legislative footprint could be created using the Oireachtas Legislative Observatory as its primary platform. The Observatory
could link to the Irish Statute Book online as well as submissions and contacts provided by the register of lobbying activities and
Government department websites.
16
The Department of Public Expenditure and Reform included feedback procedures in its response to civil society proposals for
open government reforms. See Open Government Partnership National Action Plan 2014-2016.
17
Open Government Partnership National Action Plan 2014-2016, Action 2.1
18
See: Barry Frank, Towards improved policy making in Ireland: contestability and the marketplace for ideas. Irish journal of
Public Policy 2009 http://publish.ucc.ie/ijpp/2011/02/Barry/01/en
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2. INTRODUCTION
Transparency International’s European regional report ‘Money, Power and Politics’ (2012) found that
in most European countries, the influence of lobbyists is shrouded in secrecy and a major cause for
concern. When undertaken with integrity and transparency, lobbying is a legitimate avenue for interest
groups to be involved in the decisions that may affect them. Problems arise when lobbying is nontransparent and unregulated and where privileged access is granted to a select few while others are
excluded from decision-making processes. Corporate lobbying in particular raises concerns because
it often involves companies with vast sums at their disposal developing close relationships with
19
lawmakers and thus gaining undue and unfair influence in a country’s politics and policies.
A recent Eurobarometer report revealed that 81% of Europeans agree that overly close links between
business and politics in their country have led to corruption, and more than half believe that the only
20
way to succeed in business in their country is through political connections. This corroborates the
data from TI’s Global Corruption Barometer 2013, which found that in many European countries more
than 50% of people believe that their country’s government is to a large extent or entirely run by a few
21
big interests. This report is part of regional project involving the assessment of lobbying regulations
22
and practices in 19 European countries.
Chapter III of this report maps the lobbying landscape in Ireland, giving a contextual analysis of the
national historical, socio-political and legal situation with regard to lobbying. This chapter also
discusses the intensity and scale of lobbying efforts, the various cultural understandings of the term
‘lobbying’ and perceptions of lobbying practices in Ireland. Other relevant issues such as selfregulation of lobbying activities and the role of the media and civil society as watchdogs in monitoring
and reporting on lobbying activities are also discussed.
Following on from this, Chapter IV assesses the degree to which national regulation (public law and
private self-regulation) adequately provides for transparency of lobbying activities and public decisionmaking, ethical lobbying and conduct by public officials and equality of access to public decision23
making processes. The methodology involved a series of 65 assessment questions.
19
See TI 2012 http://www.transparency.org/enis/report
See Eurobarometer, February 2014, Special Report on Corruption: http://ec.europa.eu/dgs/home-affairs/what-wedo/policies/organized-crime-and-human-trafficking/corruption/anti-corruption-report/index_en.htm
21
See TI 2013 http://www.transparency.org/gcb2013/report
22
The participating countries are Austria, Bulgaria, Cyprus, Czech Republic, Estonia, France, Germany, Hungary, Ireland, Italy,
Latvia, Lithuania, Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, and the United Kingdom.
23
See Chapter 5 for more details on the methodology and research approach used in this study.
20
11
3. MAPPING THE LOBBYING LANDSCAPE
IN IRELAND
NATIONAL CONTEXT - POLITICAL, SOCIAL AND LEGAL
In this chapter we examine the intensity and scale of lobbying in Ireland and place it in the wider
political, social and legal context. This context is overwhelmingly negative – lobbying has long been
viewed as a means of advancing powerful private interests at the expense of the public interest. Allied
to this has been an absence of political will to tackle the dominance of powerful sectoral interest
groups over many aspects of public decision-making and to curb cronyism and patronage in political
life.
Yet we find that a wide range of interest groups, large and small, are constructively contributing to
public decision-making through a variety of legitimate lobbying techniques. Ireland’s small size and
the general accessibility of politicians and public officials to citizens means that even niche or local
interest groups can often ‘punch above their weight’. However, the research also highlights how
particularly powerful corporate interests have had unrivalled access to decision-makers in important
areas.
Lobbying in Ireland is a ‘dirty word’
24
Ireland’s lobbying practice has been described as “opaque and curious”. It is widely linked in the
public consciousness with secrecy and with unfair advantages for vested interests, evoking images of
cash-stuffed ‘brown envelopes’ being delivered in return for political favours. In short, lobbying in
25
Ireland has become a dirty word.
These negative connotations are not surprising, given the pervasive context of rumours and scandals
relating to secret and unorthodox lobbying, trading in influence and political corruption which have
dominated Irish public life for more than three decades.
There have been many documented instances of undue influence in public decision-making, as well
as evidence of regulatory capture by powerful interests to the detriment of the wider public interest.
Embedded networks that fostered tax evasion, theft and bribery at all levels of government and public
26
life were exposed to widespread media scrutiny in the 1980s and 1990s.
A series of tribunals of inquiry which began in the early 1990s revealed near systemic levels of
27
malpractice and corruption in politics, government and business. A common theme of the tribunals
28
was the “unholy alliance” between politicians and big businesses, fuelled by political donations.
The specific risks associated with opaque and unregulated lobbying were highlighted in the Mahon
Tribunal which inquired into planning corruption in Dublin in the decade up to the mid-1990s. One of
24
Journal of Public Affairs (editorial), The curious case of lobbying in Ireland: an introduction, Vol. 11 Number 2, 2011.
Howlin Brendan, Lobbying has become a dirty word, we want to change that, TheJournal.ie, 3 May 2014.
http://www.thejournal.ie/readme/column-brendan-howlin-lobbying-rules-893858-May2013/
26
Transparency International, National Integrity Systems Country Study Ireland, p 33, 2009.
27
The Tribunal of Inquiry into the Beef Processing Industry (1991-1994); Tribunal of Inquiry (Dunnes Payments) (1997)
(McCracken Tribunal); Tribunal of Inquiry into Payments to Politicians and Related Matters (1997-2011) (Moriarty Tribunal); and
the Tribunal of Inquiry into Certain Planning Matters and Payments (1997-2012); (Mahon Tribunal).
28
Higgins Imelda, Corruption Law, p 18. Round Hall 2012.
25
12
the country’s foremost professional lobbyists, Frank Dunlop, gave evidence that he had paid bribes –
in some cases in cash – to local politicians in order to influence land rezoning decisions in favour of
his property developer clients.
Mr Dunlop had been a highly influential and well-connected professional. Before becoming a lobbyist
he had enjoyed a long career as a journalist and media adviser, and was the first person to hold the
position of Government Press Secretary. As a lobbyist, his large and well respected client list had
included University College Dublin, the Irish Stock Exchange, the Construction Industry Federation,
29
the pharmaceutical giant MSD and the trade union Impact.
Following his public admission at the Mahon Tribunal in 2000 that he had paid bribes, Mr Dunlop
faced a criminal prosecution. In May 2009, he was sentenced to two years imprisonment, with six
months suspended, and fined €30,000, after pleading guilty to five sample charges.
Given that Mr Dunlop is the only professional lobbyist to be convicted of bribery, it might be tempting
to dismiss him as rogue operator. However, during the years when he was using his war chest of
bribes to sway planning decisions, corruption in Irish political life has been found to have been
30
“endemic and systemic”. One expert has noted that while Mr Dunlop “may have been the prime
exponent of a particular modus operandi, he did not invent a corrupt political process – he (and others
31
yet unrevealed) operated within a political environment as it was, not as it ought to have been….”
In more recent years, the country’s unprecedented financial and fiscal crisis and the policy failures
which gave rise to it have once more brought “the shadowy world of lobbying….to the fore of Irish
32
public consciousness.”
In its 2009 National Integrity Systems Study for Ireland, Transparency International drew attention to
the perception of Irish business leaders who suggested that public policy in Ireland was unduly
33
influenced to a greater degree than in many low-income countries. This phenomenon, known as
“legal corruption,” is especially prevalent in jurisdictions where influence is sold or trafficked through
34
lawful means such as lobbying or through informal networks reinforced by political donations.
Clientelism and patronage deeply ingrained in political system
Ireland is a small country, with a population of 4.6 million people. The governmental system is loosely
based on the British or ‘Westminster model’ of parliamentary democracy, although with a written
Constitution and an elected president with limited powers. Government is heavily centralised with
35
effective executive control over the agenda of the Oireachtas (parliament) and its committees. The
cabinet is formally charged with making government decisions, although in relation to economic
decision making an even smaller inner cabinet holds sway – the four-member Economic Management
Council. In deciding policy direction, individual government ministers are ‘powerfully’ assisted by a
36
small number of senior public servants. The principal accountability link between the political and
29
McGrath Conor, The lobbyist with ‘balls of iron and a spine of steel’: why Ireland needs lobbying reform, Journal of Public
Affairs, Vol 9, pp 256-271, November 2009.
30
Mahon Justice Alan, Final Report of the Tribunal of Inquiry into Certain Planning Matters and Payments, 2012.
31
McGrath Conor, November 2009.
32
Murphy Gary, Hogan John, and Chari Raj, Lobbying regulation in Ireland: some thoughts from the international evidence,
Journal of Public Affairs, Vol 11, No 2, pp 111-119, 2011.
33
Transparency International Ireland, 2009, p 38.
34
See Kaufman Daniel, Legal Corruption, World Bank Institute, 2005,
http://siteresources.worldbank.org/INTWBIGOVANTCOR/Resources/Legal_Corruption.pdf
35
Litton Frank, An Overview of the Irish System of Government, Governing Ireland From Cabinet Government to Delegated
Government, Institute of Public Administration (editors Eoin O’Malley and Muiris MacCarthaigh), 2011
36
Chubb Basil Government and Politics of Ireland, 2nd edition, (Harlow, Longman 1982). See also, Suiter Jane and O’Malley
Eoin, Yes, Minister: The Impact of Decision-making Rules on Geographically Targeted Particularistic Spending, Parliamentary
Affairs, 2013.
13
administrative spheres is via ministerial responsibility to the lower chamber of parliament, Dáil
Éireann. However, the Dáil is effectively controlled by the executive and recent political reforms have
37
done little to shift power to the legislature.
Local government is also elected, but has limited
functions.
Ireland has a large number of elected public representatives relative to its size. Ministers and TDs
(Teachta Dála or MPs) are highly accessible to citizens. There are many formal and informal
opportunities for them to interact with voters as well as interest groups. These include TDs’ weekly
walk-in constituency ‘clinics’ as well as sporting, cultural and community events, including
constituents’ funerals. Lobbying of politicians and Ministers by interest groups and by individuals often
38
takes place at such constituency-level events, although it may not always be recognised as such.
Clientelism and localism are deeply rooted in Irish politics, and are at least in part attributable to the
peculiarities of the electoral system. The proportional representation single transferable vote system
(PR-STV) generates intra-party competition for multiple constituency seats. This in turn leads
candidates, including incumbents, to place considerable emphasis on local or constituency issues
instead of just national policy differences. Politicians, and particularly Ministers, are motivated to
deliver 'pork' to their constituents regardless of the national interest, thereby ensuring their re-election
39
to national office.
One career politician interviewed for this research said that “within the cabinet and ministerial office it
seems to be accepted that different pots of money are used as slush funds… it’s assumed that’s why
people want their local TDs to be a minister, so their constituency can benefit. That’s very much part
and parcel of the way politics is practiced, that money is allocated on the basis of constituencies
rather than on need.”
The influence of either constituency concerns or interest group pressure on political decision making
is not always easy to pinpoint. One recently retired secretary general interviewed for this research
said it was sometimes unclear who had influenced certain Ministerial decisions. “Within the system we
might be left asking questions and trying to make connections. It’s side chats and conversations in the
Dáil bar or at a race meeting or a constituency office, and that’s hard to legislate for.”
Patronage remains an abiding feature of Irish politics, particularly when it comes to Ministerial
appointments to the boards of State bodies. There have also been cases of public relations
consultants working for politicians during their election campaigns and then going on to secure
40
government contracts once the politicians’ party gained office.
TDs including Ministers commonly lobby their Ministerial colleagues on behalf of their constituents,
and Ministers for Justice in particular have been lobbied in relation to judicial appointments. In a
41
recent case a judge was lobbied by a TD seeking leniency for a constituent.
37
: Seventh Report of the Convention on the Constitution: Dáil Reform, March 2014.
See: Fallon Jonathan, Access: insider perk or key to transparency? Journal of Public Affairs, 2011.
See: Gallagher Michael, Ireland’s PR-STV electoral system: a need for reform.
https://www.tcd.ie/Political_Science/staff/michael_gallagher/IrishElectSys.php; and Quinn Brid, Irish Local Government in a
Comparative Context in M Callanan and JK Keogan (eds) Local Government in Ireland: Inside Out Dublin, Institute of Public
Administration pp 447-459 2003.
40
O’Malley Eoin, Quinlan Stephen, Mair Peter, Party Patronage in Ireland: Limited but controversial. Paper delivered at the
‘Party Patronage Workshop’, University of Leiden, The Netherlands, November 2009.
41
See: http://www.independent.ie/irish-news/politics/ff-justice-spokesman-says-he-intervened-on-criminals-behalf-because-oftragic-family-circumstances-30368071.html
38
39
14
A failure to regulate lobbying - until now
During the ‘tribunal years,’ from 1991 to 2012, political parties began actively considering the issue of
42
regulating lobbyists. Successive attempts by the Labour Party to introduce private members bills
while in opposition between 1999 and 2008 foundered due to lack of government support. Nor did the
professional lobbying sector embrace the idea of regulation with any enthusiasm. As recently as late
2007, the industry body for professional lobbyists, the Public Relations Institute for Ireland (PRII)
43
expressed its opinion that “regulation of the sector would be premature at this time’”
However in June 2014, following an extensive two year consultation process, the Registration of
Lobbying Bill was published. It will introduce some welcome transparency in this area with the setting
up of a publically available online register of lobbying activities.
Until now, the trend in Ireland has been to regulate the lobbied rather than the lobbyist. The two main
44
laws aimed at safeguarding the public interest in decision making are the Ombudsman Act 1980
45
and the more recent Ethics in Public Office Act 1995. The Ethics Act, and its related codes of
conduct, seek to minimise the risk of the misuse of public power by requiring disclosure of the private
46
interests of those working in the public domain. Responsibility for compliance is shared between a
dedicated national agency for ethics in public life, certain parliamentary committees and local
authorities.
The same wave of reforms of the mid-1990s which saw the introduction of the first ethics laws also
delivered the first access to information law, the Freedom of Information Act 1997 (FOI) which has
since been amended twice, most recently in October 2014. This represented a major attempt to shift
the culture of the public sector away from the extreme and obsessive secrecy embodied in the Official
Secrets Act 1963 (OSA). That act had provided for a blanket ban on the release of official information
unless permitted, without making any distinction between whether the information was routine or
47
sensitive. Despite a commitment by the current government to amend it, the OSA remains on the
48
statute book (the release of information under FOI is a defence against prosecution under the OSA).
Ireland has ratified the United Nations Convention against Corruption and the Council of Europe
Criminal Convention on Corruption. A draft law to consolidate the seven overlapping anti-corruption
statutes creates a set of new offences, including trading in influence and bribing through an
intermediary. The Criminal Justice (Corruption) Bill 2012 also creates presumptions that public
officials who have accepted gifts or undisclosed political donations have acted corruptly.
Rules on the financing of political parties were tightened with the Electoral (Amendment) (Political
Funding) Act 2012, and efforts are currently being made to promote transparency in relation to political
49
party accounts. However, significant concerns remain about the lack of transparency over how
50
political parties fund their electoral campaigns, particularly at constituency level. One of several
significant loopholes in current political finance laws is that there is no overall limit on the amount of
money that can be accepted by way of anonymous or cash donation. In addition, the long gaps
42
Murphy Gary, Hogan John and Chari Raj, 2011.
PRII Position Paper on the Regulation of Lobbyists, Dublin, 2007 (Unavailable online - cited in Mc Grath Conor, November
2009, p 262)
44
As amended in 2012
45
The Ethics in Public Office Acts 1995 and 2001, the Standards in Public Office Act 2001 and the Local Government Act 2001
comprise the primary ethical framework for managing conflicts of interest in the public sphere. See Higgins Imelda, 2012 p. 33.
46
These include the Civil Service Code of Standards and Behaviour 2004, (revised 2008); the Code of Conduct for Office
Holders 2003; the Code of Conduct for Members of Dáil Eireann Other Than Officeholders 2002; and the Code of Conduct for
Members of Seanad Éireann 2002.
47
Higgins Imelda, 2012, p 249.
48
Programme for Government: Government for National Recovery 2011-2016.
49
See: http://www.sipo.gov.ie/en/Guidelines/Draft-Political-Party-Account-Guidelines/
50
Mahon Tribunal, 2012, Vol. IV, pp 2611-2643
43
15
between the receipt of donations and their disclosure make it difficult to identify a causal link between
51
a political donation and a favour rendered.
INTENSITY AND SCALE OF LOBBYING
The lack of official data on the intensity and scale of lobbying in Ireland makes it impossible to
calculate how much money is spent attempting to influence policy. What information is in the public
domain clearly shows that a wide range of interest groups and individuals play a central and often
constructive role in public life in Ireland, routinely engaging in lobbying public officials,
parliamentarians, civil servants and Ministers.
Interest group activity in Ireland – insiders and outsiders
Three main kinds of interest group activity have been identified in Ireland: ‘sectional’ groups; ‘cause’
52
advocacy groups; and business or private interests.
Influential sectional interest groups include trade unions and well-known organisations like the Irish
Business and Employers’ Confederation and the Irish Farmers’ Association. These groups are well
resourced and operate at both national and European level, undertaking research, policy analysis and
lobbying. Their representatives have routine high level access to public administrators and politicians
and are appointed to the boards of State companies and public sector advisory groups and review
53
bodies. Smaller sectional groups include bodies representing various professionals like barristers,
solicitors, accountants and consultant doctors. There are some 400 trade and professional
organisations in Ireland.
One particular hallmark of the Irish model of sectional interest group lobbying is the fact that it has
been formalised through institutional arrangements which have seen specific groups effectively coopted into public policy making. These include the now defunct Social Partnership process, by which
employers, trade unions, farmers’ organisations and community groups held regular meetings on
policy areas from 1987 to 2009. In 2009, just before its formal decline, the Social Partnership process
54
included 27 different interest groups.
Another important forum for insider lobbying is the Irish Financial Services Sector Clearing House
Group which was established in 1987 and is chaired by the Department of the Taoiseach. It contains
representatives of consultancies and major international financial services companies. Its influence on
Irish budgetary and regulatory policy has been well documented. (See case study – The Power of
Elites, page 35)
Ireland also has a record of strong and effective ‘cause-centred’ groups attempting to influence policy
outcomes in specific areas. Some of these are ad hoc groups formed to press for a single measure,
particularly in relation to referendums on matters of morality such as divorce or abortion. Others are
permanent organisations, charities or non-profits with a range of funders including the State, private
55
philanthropy or public donations. The Catholic Church itself remains one of the most influential of
such interest groups actors.
51
Transparency International National Integrity Systems Country Study Ireland Addendum, p. 23, 2012
Murphy Gary, McGrath Conor, The curious case of lobbying in Ireland: an introduction. Editorial, Journal of Public Affairs
Volume 11 Number 2 pp 71-73, 2011.
53
Murphy Gary, Need for regulation of lobbying is clear, The Irish Examiner, 14 March 2014
http://www.irishexaminer.com/analysis/need-for-regulation-of-lobbying-is-clear-261958.html
54
Stafford Peter, The rise and fall of social partnership; its impact on interest group lobbying in Ireland, Journal of Public Affairs
Volume 11 Number 2 pp 74-79 (2011)
55
Murphy Gary, March 2014
52
16
The non-profit social justice and human rights sector expanded significantly during the 1990s due to a
surge in funding from large private philanthropic organisations including Atlantic Philanthropies and
the One Foundation. There are about 11,700 non-profit organisations, in Ireland, including 3,700
56
charities.
Some community and voluntary groups who receive State funding for service delivery have accused
certain state organisations of actively working to silence their advocacy or lobbying work through
57
control over funding or aggressive behaviour. However, the picture in this regard appears to be
mixed, depending on the dynamic between particular State bodies and social justice groups which
they fund. Recent research found that while some community and voluntary groups felt their advocacy
efforts were largely supported by the State, others said they had to watch their words for fear of
58
reprimand and/or a loss of funding.
One example of the uneasy relationship between funding and advocacy in Ireland is the inclusion in
recent years of ‘no advocacy’ clauses in service level agreements between health authorities and
59
voluntary agencies they fund. Although there is no evidence of these clauses being invoked, they
suggest an impulse within some parts of the public sector to limit dissent.
The third category of interest groups, classified as ‘private’ consists of “increasingly vigorous” lobbying
on behalf of private or business interests in an attempt to influence specific government policy or
60
decisions, as distinct from the sectional demands of the wider business community. Lobbying by
powerful individuals or private organisations has been a feature of successive tribunals of inquiry and
also played a part in the discredited economic policies and regulatory practices which contributed to
the economic collapse of 2008.
Privileged access and influence for business interests
Businesses which bring significant investment and jobs to the country have greater access to
ministers and senior decision-makers by virtue of their economic power. Important industries, with
lobbying strength to match, include the international financial services sector, pharmaceutical and
information technology giants. One particularly maligned symbol of the power of private interests over
policy-making during Ireland’s Celtic Tiger years was the annual “Galway Tent” where business and
political figures from the then ruling Fianna Fáil party mingled during an annual regional racing event.
Lobbying ‘from the inside’: the influence of expert and advisory groups
A host of expert or advisory groups – both temporary and permanent – exercise significant influence
61
over policy formulation and implementation in areas of vital importance to citizens.
Permanent advisory bodies include the long-established National Economic and Social Council which
advises the government on the development of the national economy. Its members are appointed by
the Taoiseach and include representatives from business, agriculture, the community and voluntary
sector, the trade union movement, environmental activists, key government departments and
56
INKex, Irish Nonprofits: What Do We Know? Available at: http://www.irishexaminer.com/analysis/need-for-regulation-oflobbying-is-clear-261958.htmlwww.wheel.ie/news/inkex-launches-report-irish-nonprofits-ceases-trading
http://www.advocacyinitiative.ie/blog/dandelion-seed-journey-advocacy-initiative
58
Harvey Brian, Government Funding and Social Justice Advocacy: Are we paying for that?: The Advocacy Initiative, 2014.
http://www.advocacyinitiative.ie/resource/are-we-paying-government-funding-and-social-justice-advocacy
59
Harvey Brian, Funding Dissent: Research into the Impact on Advocacy of State Funding of Voluntary & Community
Organisations, The Advocacy Initiative, 2013
60
Murphy Gary, March 2014.
61
Following the OECD definition, here an advisory or expert group refers to any committee, board, commission, council,
conference, panel, task force or any subcommittee set up by government (executive, legislative or judicial branch) or any of its
subgroups to provide it with advice, expertise or recommendations
57
17
academia. Another important group is the National Substance Misuse Strategy Steering Group which
62
was set up in 2009 and made recommendations to government in 2012 on tackling alcohol abuse.
Its members were drawn from government departments and agencies, medical bodies, the
community and voluntary sectors, and drinks industry groups. The drinks industry groups
subsequently lobbied government against the Steering Group’s recommendations, which they issued
minority reports on. (See case study – Public Health versus Private Wealth, page 25)
Other expert groups, review groups and taskforces are established on a temporary basis to advise a
minister or a public body on a particular policy issue. These can range from narrow or niche issues to
national issues like industrial policy. It is unclear exactly how many of these kinds of groups exist at
63
any given time, although research from 2006 counted 85 advisory bodies and 14 task forces. These
groups are generally made up of external stakeholders or experts who are invited to join on an unpaid
basis to formulate recommendations to a Minister or a public body on a particular area of policy.
Members of many advisory groups or bodies provide valuable expertise and experience to policy
makers, giving up significant amounts of their time to these public duties. However, when private
interests are advising governments as members of a taskforce or advisory group, they are no longer
viewed as external actors lobbying. Instead, they become part of the decision-making process itself.
There are no statutory obligations in place to ensure a balance of interests in these sorts of groups.
Furthermore, lobbyists and corporate executives are allowed to sit on advisory groups or expert
64
groups in a personal capacity. The Organisation for Economic Cooperation and Development
(OECD), has identified the influence of private interests through expert or advisory groups as ‘an
65
emerging risk to the integrity of policy making’.
Professional lobbyist sector– a growth area
66
The professional lobbyist sector in Ireland has grown significantly in the past three decades.
It has been argued that the sector has burgeoned to fill an information vacuum caused by the fact that
67
legislators receive relatively little funding for researchers and policy advisors.
All the major communications and PR firms provide lobbying services as a sub-sector of their ‘public
affairs’ divisions. Staff and consultants in this area typically include former journalists and political
advisers, former party officials or activists, ex-civil servants, parliamentarians, Ministers and
government press officers. Such professionals generally have a deep understanding of the political
and policy-making system, well developed contacts across various government departments and
perhaps even strong personal relationships with civil servants and politicians.
One expert practitioner has estimated that there are between 100-200 consultant lobbyists in Ireland
68
and around 500-600 in-house lobbyists. Another academic expert recently estimated that there are
no more than ten influential lobbying firms in Ireland, who have “copper-fastened their position by
69
employing former political actors to ensure access to the lobbying market.”
62
http://www.merrionstreet.ie/index.php/2012/02/launch-of-the-report-of-the-national-substance-misuse-strategy-steeringgroup/
63
Clancy Paula, and Murphy Grainne, Outsourcing Government: public bodies and accountability, p.18, New Island Press,
2006.
64
OECD, 2014 (forthcoming) p. 66.
65
OECD, 2014, (forthcoming) p 64.
66
See: http://www.independent.ie/opinion/analysis/for-better-or-worse-the-mysterious-craft-of-the-political-lobbyist-is-here-tostay-30216749.html
67
McGrath Conor, Lobbying Regulation: An Irish solution to a Universal Problem? in John Hogan, Donnelly, Paul
F, and O’Rourke Brendan K, (Eds) Irish Business and Society: Governing, Participating and
Transforming in the 21st Century. Dublin, Gill and Macmillian, 2012.
68
McGrath Conor, 2012.
69
Murphy Gary, March 2014.
18
Public affairs and public relations consultancies cater to a range of clients, from foreign business
interests operating or wishing to operate in Ireland, to indigenous organisations and charities. In
addition, lobbying has also emerged as a specialisation within the larger legal and accountancy
services firms. Large commercial enterprises will also generally employ in-house staff whose work
involves targeting decision makers in their organisations’ fields of interest.
Lobbying techniques and elite insider lobbying – the ‘word in an ear’ approach
In addition to direct communication with parliamentarians, ministers and civil servants, lobbying in
Ireland also includes grass-roots activities by a range of interest groups including some which receive
funding from the alcohol and tobacco industry.
Official information released in relation to the scale of lobbying ahead of the Finance Bill 2012 showed
that submissions were made to the Department of Finance from some 700 organisations, individuals
70
and companies. One former civil servant interviewed for this research described the ritualised
71
lobbying process surrounding the annual Finance Bill as “akin to mating season”.
While these kinds of lobbying activities are routine, predictable and often visible, discreet lobbying
through elite networks of influence and access also takes place. By definition, the scale of these
attempts at influence is impossible to gauge as they deliberately take place “off the record” and
behind the scenes.
One particular form of elite insider lobbying was highlighted in a recent public controversy involving a
highly influential political party strategist for the ruling Fine Gael party who combined this role with
paid consultancy work as a lobbyist. Thanks to his role within Fine Gael, Frank Flannery had
significant access to Ministers and their advisers as well as privileged access to Leinster House, the
72
seat of parliament. (See case study - The Ultimate Insider, page 20)
Formal access passes are granted to people who work in Leinster House, such as political party staff,
Oireachtas employees and journalists. According to the Houses of the Oireachtas Service, the total
73
'Leinster House community' of pass holders during the lifetime of a Dáil is around 1,500.
Former TDs and Senators turned lobbyists have the added advantage of lifelong access and parking
privileges in Leinster House. Some former officials also benefit from these arrangements, having
served as so-called “weekend senators”. This is a nickname given to the practice of appointing people
74
to fill gaps in the Seanad for brief periods of time, typically towards the end of a government’s term.
All visitors to Leinster House must be signed in by TDs or Senators and should be accompanied at all
times by their host or their host’s staff. However, the regime is sufficiently relaxed that individuals,
once signed in, may be free to interact with other elected and unelected officials, many of whom have
offices in the complex. Some interest group members interviewed for this research said they have
positioned themselves in various places around the Leinster House complex, including the coffee
dock and the Dáil bar, in order to ‘buttonhole’ various politicians. There are also dedicated meeting
rooms for lobby groups and constituency groups.
70
Dáil Eireann Debate, Vol.756. PQ No. 9650/12
See also, Montague Pat, Persuasive Influence: An assessment of how Irish Civil Society Groups Campaign around the
Budget, Political Studies Association of Ireland Conference, p 37, 19 October 2002.
72
Mr Flannery had an access pass issued by Fine Gael. See: http://www.irishtimes.com/news/politics/flannery-loses-leinsterhouse-access-1.1721256
73
Email exchange with lead researcher, 11 June 2014.
74
http://www.irishtimes.com/news/the-dark-arts-of-political-lobbying-1.531515
71
19
Public affairs professionals interviewed for this research said access to senior decision-makers in the
offices and bars of Leinster House is often sought by clients, who may be charged significant fees for
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the privilege of an encounter in the Dáil bar.
According to Fergus Finlay, a former political adviser and public affairs consultant who currently is
head of the children’s charity Barnardos, lobbying in the corridors of Leinster House is routine.
“There will be no record or minutes of meetings, and yet when an issue is discussed at the cabinet
meeting, it will become apparent that eight people will have been stopped in the corridors…I don't
want you to think these are bad people but nearly everyone who has worked in politics in the past and
remained in the public affairs world, nearly everybody believes the best way to get stuff done is to
have a word in an ear,” he said.
However, another former senior political adviser turned consultant public affairs professional, Gerard
Howlin, cautioned that “the idea that you can walk the corridors of power is a myth, with spectacular
exceptions disproving the rule. In reality, policy is made in a very conservative defensive system
defined by sclerosis. It’s about persuading from inside out and from the bottom up. It’s very easy to
get hold of a minister - you get five minutes and you are told it’s a great idea - but it’s not effective on
its own.”
Róisín Shortall, a former junior health minister interviewed for this research said the level of success
of this “word in an ear” approach from interest groups “depends on how much importance an
individual minister will attach to different interests. Obviously the rich and powerful do have that
access and can afford to hire intermediaries to set up that access. Their paths cross in that
intersection between business and politics. In relation to alcohol and drug prices that nexus is quite
significant.” (See case study Private Wealth versus Public Health on page 25)
This interviewee attributes successful lobbying by the pharmaceutical sector, which is a significant
employer in Ireland, to the fact that the price the State pays for common generic and branded
medicines remains significantly higher than in other European countries.
Case Study: The Ultimate Insider - Access and Influence in the Corridors of
Power
Controversy surrounding the activities of a senior political advisor placed the media
spotlight firmly on lobbying in early 2014. The issue hit the headlines after it emerged
that Frank Flannery, a key adviser to the largest party in government, combined this role
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with paid consultancy work as a lobbyist for a national disability charity, Rehab.
As a senior and highly influential Fine Gael strategist, Mr Flannery had significant access
to political leaders and their advisers. He was able to casually lobby government
ministers in the corridors of the houses of parliament, Leinster House, because he had an
access pass issued by Fine Gael.
One former minister said he would have occasionally seen Mr Flannery before the weekly
Cabinet meetings on a particular corridor in Leinster House where ministers have their
offices. Mr Ruairí Quinn, from Fine Gael’s coalition partner the Labour Party, said Mr
Flannery would usually be with Fine Gael advisers. He said Mr Flannery would have
75
76
See also Fallon Jonathan, 2011.
http://www.irishtimes.com/news/politics/rehab-paid-frank-flannery-to-lobby-the-government-1.1717101
20
spoken to him on occasion about State funding for Rehab, but that these conversations
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were ‘not in any lobbying kind of way’.
Mr Flannery resigned from his unpaid position as a Fine Gael strategist in March 2014,
after weeks of controversy about apparent conflicts of interest in his dual role as both a
party insider and a consultant lobbyist.
This case highlights the current lack of transparency over the lobbying activities of such
privileged insiders who enjoy access to key decision-makers and their political advisers in
the corridors of power. It is not known whether senior Fine Gael figures were aware of Mr
Flannery’s public affairs work on behalf of Rehab. However, it is reasonable to expect that
procedures should be in place to manage such private interests.
It has also been noted that Mr Flannery’s activities in many ways define the problem of
lobbying in Irish society. In particular, Mr Quinn’s statement that Mr Flannery had spoken
to him ‘but not in any lobbying kind of way’ begs the question as to what exactly
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constitutes lobbying.
CULTURAL UNDERSTANDING OF LOBBYING
Lobbying in Ireland has long been viewed as a way of advancing private interests at the expense of
79
the common good. In addition, public controversies involving lobbyists have focused on powerful
and highly connected insiders who have had unrivalled access to official Ireland – creating what
seems like a golden circle of power and influence.
The professional body representing public affairs practitioners, the Public Relations Institute of Ireland
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(PRII) has stated that: “Ireland does not have a lobbying industry. Ireland has a lobbying culture.”
One in-house lobbyist, Kathleen O’Meara from the Irish Cancer Society charity, described lobbying in
Ireland “as the thing you do. Teachers do it, farmers do it. It’s what the politician expects. The public
would see PR and public affairs people as lobbyists, but they wouldn’t necessarily see charities as
lobbyists, even though clearly we are.”
One former Secretary General described the “basest form of lobbying which I was constantly
subjected to was groups lobbying for cash. It’s systemic…it is so engrained in our system that we
don’t recognise it.”
Another former Secretary General said: “Sometimes the most powerful lobbies are within the State
system...a lot of what I call lobbying comes from State agencies and employees within those
agencies.”
Given the pejorative associations that come with the term lobbying, it is not surprising that many
interest groups describe their work to influence policy as ‘advocacy’ or ‘campaigning’. These terms
suggest speaking in support of a cause or direct action, whereas lobbying conjures up images of
people lying in wait for legislators in foyers, bars or corridors.
The negative cultural perception of lobbying in Ireland can be viewed in a wider context of the public’s
lack of trust in the integrity of political parties. Trust in government stood at 21% in 2014, the lowest
77
http://www.thejournal.ie/frank-flannery-untenable-1353704-Mar2014/
http://www.irishexaminer.com/analysis/need-for-regulation-of-lobbying-is-clear-261958.html
O’Brien Carl, The dark arts of political lobbying, The Irish Times 7 July 2012. http://www.irishtimes.com/news/the-dark-arts-ofpolitical-lobbying-1.531515
80
Public Relations Institute of Ireland, Response to Department of Public Expenditure & Reform’s Public Consultation on the
Regulation of Lobbyists, February 2012 http://www.per.gov.ie/regulation-of-lobbyists-submissions/
78
79
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since 2011, according to the annual Edelman Trust Barometer. In that survey, only 3% of Irish people
said they trusted government leaders a great deal to tell them the truth, while only 5 per cent trusted
them to make ethical and moral decisions. Ireland’s overall score for the Edelman Trust Barometer –
the average trust across the four institutions of government, NGOs, business and media – stood at
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39% in 2014, making Ireland the third least trusting country out of the 27 surveyed.
Citizens are also deeply suspicious towards business and acutely aware of the cosy relationship
between business and politics. Three quarters (75%) of Irish people believe corruption is part of the
business culture in Ireland, according to a recent Eurobarometer survey. And more than eight out of
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ten Irish people agreed that links between business and politics in the country were too close.
SELF-REGULATION OF LOBBYISTS ACTIVITIES
While many groups and organisations which engage in lobbying endeavour to do so in a transparent
way, most institutional efforts at self-regulation have come from the professional lobbyist industry.
These efforts inevitably suffer from the fact that they are entirely voluntary and apply only to lobbyists
who are members of a particular association.
Industry self-regulation – well-intentioned but ineffectual
The Public Relations Institute of Ireland (PRII) has 1,000 individual members who are drawn from PR
and public affairs consultancies as well as industry, government, semi-state, voluntary and business
organisations. Members subscribe to three codes of professional practice; an international code; a
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European code; and an Irish industry code. The Irish code was introduced in 2003 following a
controversy over improper influence-peddling by one of the institute’s members. According to the
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PRII, that member voluntary resigned from the institute and left the profession.
Anyone inside or outside the PRII may file a complaint against a member for a breach of the lobbying
code of practice. Breaches of the code are punishable under the regular disciplinary procedures of
the PRII, which involve a two stage process. Sanctions can range from reprimand to expulsion from
PRII. According to the PRII, no complaints have been filed against PRII members since the code was
introduced in 2003, nor have there been any investigations by the disputes committee for violations of
85
the code.
While compliance with the Irish code is a mandatory condition of PRII membership, lobbyists are not
obliged to join the institute, so that anyone who wishes to avoid being bound by the codes is entirely
86
free to do so. The code itself also has some shortcomings. For example, it states that lobbyists will
actively disclose the identity of clients. However, there is in practice no mechanism by which the
public is enabled to see who is lobbying whom on whose behalf. According to one former PRII
member, the code “does nothing whatever to increase general transparency or accountability in the
81
Edelman Ireland Trust Barometer 2014 - http://www.edelman.ie/edelman-ireland-trust-barometer-2014/
European Commission, Special Eurobarometer 397, February 2014
http://ec.europa.eu/public_opinion/archives/ebs/ebs_397_en.pdf
83
The International Code of Ethics, also known as the Code of Athens; the European Code of Professional Practice, adopted by
the European Public Relations Confederation and commonly known as the Code of Lisbon; and the PRII’s own Code of
Professional Practice for Public Affairs and Lobbying, 2003. See:
http://prii.ie/show_content.aspx?idcategory=1&idsubcategory=1
84
OECD, Lobbyists, Governments and Public Trust Volume 2, Promoting Integrity Through Self-Regulation, p 23, 2012.
http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?doclanguage=en&cote=gov/pgc%282009%299
85
PRII email exchange with lead researcher, 30 October 2014.
86
McGrath Conor, November 2009.
82
22
lobbying process…the code, while well-intentioned, fails to enhance the public acceptability of
87
lobbying or public trust in the policy-making process.”
For its part, the PRII maintains that the code and the associated disciplinary process means that its
members are accountable for their adherence to the code. According to its chief executive, John
Carroll, the code and the disciplinary process are “not designed to address issues of transparency
which are covered by governmental initiatives such as Freedom of Information, improving the
parliamentary questions system and so forth.”
“Signing up for the Code of Conduct is a requirement for membership of the PRII. It is a voluntary act
that differentiates members of the PRII from non-members, who do not ascribe to any such Code.
The benefit is internal and external. Individual members are conscious that they have a higher ethical
requirement as a result of their membership. Furthermore, clients, employers and others who deal
with PRII members are aware that members voluntarily ascribe to this higher set of standards than
non-members do.” 88
The second association for professional lobbyists in Ireland is the Public Relations Consultants
Association (PRCA) which represents PR and Public Affairs consultancy firms rather than individuals
who affiliate to the PRII. The PRCA currently has 29 member firms, most of them based in Dublin,
89
with an estimated combined income of €40 million and some 400 employees. The PRCA and the
PRII work closely with each other, as many individuals who are PRII members come from companies
which are PRCA members.
The PRII’s Mr Carroll said in October 2014 that it planned to resume its training, including on ethics
within the context of public affairs and engagement within the public policy arena. Laurie Mannix, the
chair of the PRCA said she believed “more time should be given to promoting the codes among new
entrants to the PRII. As an industry we should be doing more to raise awareness of the codes, which
90
are very extensive."
87
McGrath Conor, November 2009, p 262.
Email exchange with lead researcher, 30 October 2014.
89
Public Relations Consultants Association, Response to the Public Consultation on the Regulation of Lobbyists (Submission to
Department of Public Expenditure and Reform) February 2012. http://www.per.gov.ie/regulation-of-lobbyists-submissions/
90
Interview with lead researcher, 17 April 2014.
88
23
WATCHDOGS: THE ROLE OF MEDIA AND CIVIL SOCIETY IN
MONITORING LOBBYING
The Irish media plays an important role in monitoring the influence and activities of both lobbyists and
those they lobby. Many media exposés have revealed cases of undue influence, maladministration,
political cronyism, conflicts of interest and inefficiencies in the public sector. Several high profile books
have detailed corruption and abuse of power and the role of vested interests in public life and policy91
making.
A significant number of journalists routinely use Freedom of Information requests (FOI) to expose the
political lobbying activities of significant interest groups. These include recent efforts by the drinks
industry to resist Government proposals on curbing alcohol advertising. (See case study - Public
Health versus Private Wealth, page 25)
The media has also revealed Europe-wide lobbying by the tobacco industry, which is resisting
Government plans for Ireland to become the first European country to introduce plain packing for
cigarettes.
The FOI Act has also been effectively used in recent years by journalists to shine considerable light
on the influence on public policy of the International Financial Services Centre Clearing House Group,
a body chaired by the Government’s most senior civil servant, which includes representatives from
the top global legal and financial firms. (See case study – The Power of Elites, page 35)
92
In 2013, journalists accounted for one in ten of all FOI requests made.
The Information
Commissioner has recognised that journalists’ use of FOI has prompted debate on many issues
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which, before its introduction, would not have been known about or discussed.
However, charges
for searching and photocopying records can be extensive, with the result that only organisations or
individuals with sufficient resources can use FOI effectively for detailed investigations. In addition,
delays associated with appeals mean the FOI regime is not always suitable for accessing information
which is time-sensitive.
94
Concerns have grown in recent years about the ongoing consolidation of media ownership. This
may have a negative impact on plurality of opinion and the investigation or analysis of corruption in
Ireland. Irish libel laws are also restrictive and can impede investigative journalism and commentary
on public affairs. In a 2013 report on Ireland, the United Nations Special Rapporteur on Human Rights
noted the reported use of litigation and threatened litigation to intimidate journalists. She underlined
‘the importance of the Press Ombudsman and the Press Council, established to safeguard and
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promote professional and ethical standards in Irish print media.
Ireland has a small parliamentary press corps, access to which is restricted to accredited political
correspondents who, together with sketch writers and parliamentary reporters, make up the
parliamentary gallery. Briefings are held for political correspondents following the weekly Cabinet
meeting.
91
For example, see McDonald Frank, The Destruction of Dublin, Gill and Macmillan 1985; Cooper Matt, Who Really Runs
Ireland? The story of the elite who led Ireland from boom to bust and back again, Penguin Ireland 2009; and O’Toole Fintan,
Ship of Fools: How Stupidity and Corruption Sank the Celtic Tiger, Faber and Faber 2009.
92
Office of the Information Commissioner Annual Report 2013 http://www.oic.gov.ie/en/publications/annual-reports/2013annual-report/online/chapter4.html#s4
93
O’Reilly Emily, Freedom of Information: The first decade, in 10th Anniversary Conference of Freedom of Information in
Ireland conference proceedings. Dublin: Office of the Information Commissioner.
94
http://www.rte.ie/news/ireland/2012/0420/317841-govt-voices-concern-over-irish-media-ownership/
95
Sekaggya M, Report of the Special Rapporteur on the situation of human rights defenders, 2013Available from:
http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A-HRC-22-47-Add-3_en.pdf
24
A few civil society organisations work on democratic accountability issues, including Transparency
96
97
International Ireland, the think tank TASC, and the Irish Council for Civil Liberties.
Citizens’
initiatives which focus on integrity in public life include The Story, a website run by journalists which
promotes transparency in public life by sharing documents and making available records it requests
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under FOI laws. This material covers a wide range of areas and topics and sometimes includes the
activities of lobbyists. In addition, the volunteer-run website kildarestreet.com is designed to allow
citizens to easily find out what debates are taking place in the Oireachtas (parliament), while the nonprofit website Dáilwatch allows citizens to ask questions of parliamentarians and track their voting
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records.
Case Study: Public Health versus Private Wealth – Lobbying by the Drinks
Industry
Industry efforts to influence government policy can be seen in attempts by the drinks
lobby to resist proposals for robust regulation of alcohol sponsorship of sporting events.
Documents released to The Irish Times under the Freedom of Information Act (FOI)
revealed that the industry’s lobbying efforts against a ban on alcohol sponsorship of
sporting events has gone to the top level of the Government. It featured global and
national business figures, and interventions with Ministers were made at sensitive points
in the debate.
The documents also showed that representatives of the drinks industry knew when official
reports were due to be published and, in one instance, claimed to know the contents of a
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confidential official memorandum that had not yet reached Government.
The alcohol industry makes an important contribution to the Irish economy, generating
employment, tax income and export income. The industry itself estimated that it
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contributed €2bn to the exchequer in 2013.
However, evidence shows that alcohol-related harm also creates economic costs for the
state, including the loss of work output, the costs of healthcare, road accidents, crime and
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social security payments. This was estimated at €3.7 billion in 2007.
In a bid to address the issue of alcohol abuse, the government in 2009 established a
National Substance Misuse Strategy Steering Group. Group membership was drawn
from government departments and agencies, medical bodies, the community and
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voluntary sector, and representatives from the drinks industry itself.
The Steering Group’s Report on a National Substance Misuse Strategy, published in
February 2012, contained a range of recommendations, including a ban on alcohol
sponsorship of sporting events by 2016. The drinks industry bodies on the group
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published dissenting minority reports, with one accusing the Steering Group of bias.
96
www.tascnet.ie
www.iccl.ie
www.thestory.ie
99
www.dailwatch.ie
100
https://www.irishtimes.com/news/politics/powerful-play-by-drinks-sector-to-block-ban-on-sponsorship-of-major-sportingevents-1.1645201
101
http://www.abfi.ie/Sectors/ABFI/ABFI.nsf/vPagesABFI/Industry_in_Ireland~economic-contribution!OpenDocument
102
http://health.gov.ie/blog/publications/steering-group-report-on-a-national-substance-misuse-strategy-february-2012/
103
Both the Alcohol Beverage Federation of Ireland and the industry-funded charity Mature Enjoyment of Alcohol in Society
were represented http://www.dohc.ie/publications/pdf/Steering_Group_Report_NSMS.pdf?direct=1
104
National Substance Misuse Strategy 2009-2016 Minority Report by Mature Enjoyment of Alcohol in Society Limited
97
98
25
Government efforts to deal with some of the key issues identified in the Steering Group’s
report have met with delays, prompting a former junior minister with responsibility for this
area to accuse it of ‘kicking to touch’ on the issue of alcohol sponsorship. The
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government denies this.
However, documents obtained by The Irish Times through FOI demonstrated how in
recent years the drinks industry has lobbied against a ban on alcohol sponsorship of
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sporting events.
Some of this lobbying came from the two alcohol industry groups
which were members of the Substance Misuse Strategy Steering Group.
In May 2013 the minister with responsibility for this area reportedly circulated a proposal
to government for the introduction of a ban, limited to major sporting events, by 2020.
This proposal is a step back from the outright ban by 2016 recommended by the Steering
Group. It was opposed by some Ministers including the then Minister for Sport who
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expressed concern that sports funding could be lost if a ban was introduced.
It also prompted a wave of correspondence to Ministers from national and regional
Chambers of Commerce and the Alcohol Beverage Federation of Ireland. According to
The Irish Times these documents revealed that a senior drinks industry figure claimed to
know details of the ban proposals even though these were confidential. The lobbying took
place at the highest political levels and on the international stage, with the Taoiseach
reportedly made aware of industry concerns in discussions with a senior executive at the
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2013 World Economic Forum.
The government subsequently decided not to immediately proceed with a sponsorship
ban. Consideration of the issue was instead moved to an interdepartmental Working
Group on Alcohol Sponsorship in Sport established in October 2013. This group is due to
report at the end of 2014. In the meantime, more than two years after the report of the
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Steering Group, a Public Health Alcohol Bill has not yet been published.
16 November 2011 http://www.meas.ie/assets/Research-2012/meas-minority.pdf
105
http://www.kildarestreet.com/debates/?id=2014-03-05a.218#g324
106
https://www.irishtimes.com/news/politics/powerful-play-by-drinks-sector-to-block-ban-on-sponsorship-of-major-sportingevents-1.1645201
107
http://www.rte.ie/news/2013/0611/455890-alcohol-sponsorship-ban/
108
https://www.irishtimes.com/news/politics/powerful-play-by-drinks-sector-to-block-ban-on-sponsorship-of-major-sportingevents-1.1645201
109
http://www.irishexaminer.com/ireland/health-minister-to-take-on-drugs-and-alcohol-policy-275865.html
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4. REGULATING LOBBYING:
TRANSPARENCY, INTEGRITY AND
EQUALITY OF ACCESS
The public has a right to know who is trying to influence public decision making. But for transparency
in relation to lobbying to be meaningful, it must be part of a wider framework for integrity in public life
that ensures that public officials and representatives act to promote the public interest. Likewise,
efforts to regulate lobbying must be viewed in the broader context of the need for pluralism and
equality of access to the decision-making process. This could help to ensure that a diversity of
opinions are taken into account in policy-making. A more diverse and contestable “marketplace for
ideas” in policy-making would help diminish the power of vested interests, including elements of the
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political establishment and the bureaucracy itself.
In this chapter we assess the degree to which Irish law and practices adequately provide for
transparency and integrity in relation to lobbying activities and public decision-making. We also
examine whether a level playing field exists in terms of equality of access to decision-making
processes.
TRANSPARENCY
In exploring transparency around lobbying practices, our research sought to answer the following
questions: to what extent does the public have sufficient knowledge of (a) who is lobbying public
representatives (b) on what issues they are being lobbied (c) when and how they are being lobbied
(d) how much is being spent in the process (e) what is the result of these lobbying efforts. It also
examines whether the onus for transparency is placed on both lobbyists and public
officials/representatives.
We conclude that while some aspects of policy-making are open to public scrutiny, there is a general
lack of proactive transparency about how government policy is made, who has sought to influence it
and how much money as been spent in the process.
While a planned register of lobbying activities will introduce some welcome transparency in this area,
the extent to which it will ensure meaningful disclosure in relation to how public decisions are really
influenced depends on a range of factors which we explore in this chapter.
Lobbying without a trace – influence closed to external scrutiny
Government departments and public bodies routinely publish a range of information in relation to their
work. However, there is little consistency in relation to the kinds of information that is proactively
released. For example, the official diaries of the chief civil servants in many government departments
are routinely published on their websites. However, this is not the case with ministerial diaries,
111
although these can be accessed through the Freedom of Information regime.
110
See Barry Frank, Towards improved policy making in Ireland: contestability and the marketplace for ideas. Irish journal of
Public Policy 2009 http://publish.ucc.ie/ijpp/2011/02/Barry/01/en
111
See http://thestory.ie/2012/08/29/minister-for-finance-diary-2012-to-july/
27
There are no detailed guidelines for public officials in relation to transparency in their dealings with
lobbyists. Also, while it is standard practice for many civil servants to take notes of meetings, there is
no statutory obligation for them to create these records. The only specific guidance in this area that
his research found is provided in the code of conduct for holders of public office, a category which
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includes Ministers and Ministers of State.
This states they should be accompanied by an official
note-taker in meetings involving official business. The code advises that at a minimum, an official or
adviser should attend before the conclusion of a meeting to record details of any decisions
113
reached.
Several interviewees working in the political sphere pointed to the absence of clear guidance in
relation to official meetings with lobbyists.
“There were no guidelines or established practices. It was anything goes,” said one former junior
minister. “I was never given any advice about having people with us in meetings. I would often
request officials to be present and very often they wouldn’t be available. In practice, I’d generally have
one of my own staff present. On a small number of occasions I would have, for the sake of
transparency, insisted on having officials present.
“A lot of government business would be done on Tuesday and Wednesday night from Leinster House.
You may not have your private secretary there late in the evening. Political advisers may play more of
a role there. Those meetings aren’t always captured unless they are formally arranged and in a
Minister’s diary. Even then, one Minister may bring in somebody and call other ministers to join them.”
The lack of transparency in relation to lobbying was highlighted by the Mahon Tribunal which said all
senior office holders should be required to record and publish details of their contacts with
professional lobbyists and outside interest groups. It also recommended that public officials be given
clear guidance on how they are expected to engage with lobbyists and should keep records of their
contacts with them. At a more general level the tribunal concluded “government should try to be more
open and transparent about how it formulates policy and the grounds for policies ultimately
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adopted.”
In the absence of strong institutional culture of transparency in the public sector, and robust practices
to ensure proactive release of information, two other formal transparency tools are widely used to
interrogate how policy is influenced. These are Parliamentary Questions (PQs) and Freedom of
Information (FOI) requests. PQs, both written and oral, can be an effective means to get official
information from a Minister promptly as they must be answered within three days. More than 50,000
PQs were asked in 2013. These include questions submitted by legislators at the request of or on
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behalf of interest groups, constituents, journalists and others.
FOI too has increased transparency in relation to public decision-making.. The Information
Commissioner, in a review of the first decade of the FOI regime, described acceptance of it as
“uneven” within public bodies, with some “reluctant” and others suffering “FOI fatigue” due to resource
116
constraints.
112
The category ‘officeholders’ comprises: the Taoiseach; the Tánaiste; Ministers; Ministers of State; an Attorney General who
is a member of the Oireachtas; the Chair and Deputy Chair of the Dáil and the Seanad; and Chairpersons of Joint Oireachtas
Committees.
113
Code of Conduct for Office Holders 2.2.6 (2003)
114
Mahon Tribunal 2012, Vol IV p 2642
115
Houses of the Oireachtas Commission, Annual Report 2013. http://www.oireachtas.ie/parliament/media/HOUSES-OF-THEOIREACHTAS-ANNUAL-REPORT-2013.pdf
116
Office of the Information Commissioner, Freedom of Information; The First Decade, 2008.
http://www.oic.gov.ie/en/Publications/Special-Reports/10th-Anniversary-Publication-Freedom-of-Information-The-First-Decade/Freedom-of-Information-The-First-Decade.pdf
28
FOI’s potential to shed light on lobbying activities in particular has been inhibited in recent years by
broad exemptions for categories of information including records on meetings of the government and
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deliberations of public bodies.
However, the Freedom of Information Act 2014 significantly
improves the public’s right to information by extending the application of FOI to almost all public
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bodies and allowing better access to government records. State-sponsored agencies which remain
entirely excluded from FOI include important utility companies. A notable exception is Irish Water,
which was set up in 2013 to oversee the introduction of water charges. It was brought within the
scope of FOI in 2014 amid public concerns about how it was set up and reports of wasteful spending
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as well as a generous regime of bonuses for staff.
Many of the key organisations which manage the national finances, such as the Central Bank, the
National Asset Management Agency and the National Treasury Management Agency, are partially
excluded from the Act. One FOI expert has observed that while these bodies clearly need the space
to conduct business on behalf of the State, a lack of information about their activities could be
detrimental to the public interest. In addition, the Act only extends FOI to administrative records of An
Garda Síochána, relating to human resources, finance or procurement matters. This restriction means
that law enforcement matters of significant public interest will still remain outside the scope of FOI –
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an approach described as ‘seriously out of kilter’ with other jurisdictions.
The FOI Act 2014 abolishes application fees for FOI requests and includes a new penalty for a person
convicted of the deliberate altering or destruction of records which are the subject of an FOI request.
It also requires public bodies to publish more information proactively and includes a revised code of
practice for public servants aimed at making the regime work more efficiently.
Some anecdotal reports have suggested that the introduction of FOI legislation has had a negative
impact on policy making by prompting officials to keep much sparser records.
“There is no doubt in my mind that a knee jerk reaction to the FOI legislation was that over and over
again you’d hear the phrase, ‘we’d better not write that down’,” said one former Secretary General.
However, this interpretation was challenged by another serving senior civil servant, who nevertheless
acknowledged the need for improvements in record-keeping and records management. No
independent research has examined whether FOI has indeed led to poorer record keeping in
government departments. However, a recent survey of local government officials concluded that they
“are clearly mindful of the fact that inadequate recording of the reasons why a particular course of
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action was pursued may make it difficult for them to defend their decisions at a later date”.
Ireland invested heavily in training of civil servants prior to the introduction of the FOI Act in 1998.
However, training efforts were not sustained and this has led to complaints about inconsistencies in
the handling of FOI requests by some public bodies.
117
See Global RTI Rating, Ireland Freedom of Information Act Country Report http://www.rti
rating.org/view_country.php?country_name=Ireland
118
http://www.irishstatutebook.ie/2014/en/act/pub/0030/index.html See: McDonagh Maeve, Freedom of Information Law 3rd
edition, Round Hall, 2015 (forthcoming).
119
http://www.rte.ie/news/2014/0122/499430-water-foi/
120
http://www.irishexaminer.com/analysis/foi-bill-concerns-must-be-tackled-250591.html
121
McDonagh Maeve, Access to Local Government Information in Ireland: Attitudes of Decision-Makers, in Open Government:
A Journal on Freedom of Information, 2010. Available at SSRN: http://ssrn.com/abstract=2153666
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Proactive disclosure of information – a mixed picture in the public sector
There does not appear to be any uniform practice in relation to proactive public disclosure of written
submissions received during consultations run by government departments on legislative or policy
proposals. Some departments and other public bodies routinely publish all written submissions
received online. For example, the Department of Public Expenditure and Reform recently published
122
submissions on its lobbying reform proposals,
while the Department of Agriculture published
123
submissions on its 2010 Forestry Review.
Other departments invite written submissions which they only publish with express permission from
the author. For example, a recent public consultation on a proposal to establish an independent
policing authority sought written submissions with the caveat that they may be published and in any
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case were subject to release upon request under FOI.
The Freedom of Information Act 2014 makes provision for all public bodies to publish ‘publication
schemes’ which the responsible Minister says are intended to lead to routine proactive disclosure of
125
extensive information by public bodies about their work outside of FOI.
In terms of transparency in relation to how laws are progressed and passed, the Irish authorities say
126
this has been achieved mainly through ‘cultural, administrative and technical changes’.
These
changes include reforms to allow earlier scrutiny of draft laws by parliamentary committees before
actual bills are introduced in parliament. In a recent report by the Council of Europe’s Group of States
against corruption (GRECO), the legislative process in the Irish parliament was praised for being very
127
transparent and providing broad public access.
Irish law does not require the publication of a “legislative footprint” – information on laws documenting
the contacts and inputs made in developing them. However, the first National Action Plan under the
Open Government Partnership contains a commitment to introduce a ‘legislative footprint’ including
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consultation documents, meetings held with stakeholders and submissions received.
When it comes to open data – public sector data that is made available for anyone to use, reuse and
redistribute – Ireland performs poorly compared to its western European neighbours. The 2013 Open
Data Barometer, which examined how much and what type of official data is available and accessible,
and its positive impacts. Ireland ranked 29 out of 77 in the survey carried out by the non-profits World
Wide Web Foundation and the Open Data Institute. Its overall score was 36 out of 100, with
particularly low scores for the availability in open, machine readable and reusable formats of its
129
legislative, health, budget, land, map and transport data.
The government says it plans to release
130
significantly more public sector data sets for reuse as part of its open data strategy.
122
http://www.per.gov.ie/regulation-of-lobbyists-submissions/
https://www.agriculture.gov.ie/forestryreview/submissionsreceived/
http://www.justice.ie/en/JELR/Pages/WP14000115
125
The duty to publish publication schemes comes under Section 8 of the Act, which shall come into operation 12 months from
enactment or earlier by Ministerial order.
http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail2013121800074#N9
126
Ireland, Fourth Evaluation Round, Questionnaire Part 1, Corruption prevention in respect of parliamentarians, 2014. (Irish
government document prepared for GRECO, the Group of States Against Corruption.)
127
GRECO,Fourth Evaluation Round, Corruption prevention in respect of members of parliament, judges and prosecutors,
October 2014. http://www.coe.int/t/dghl/monitoring/greco/evaluations/round4/GrecoEval4%282014%293_Ireland_EN.pdf
128
Department of Public Expenditure and Reform, Open Government Partnership National Action Plan 2014-2016.
129
Open Data Barometer 2013 Global Report http://www.opendataresearch.org/barometer
130
Department of Public Expenditure and Reform, Open Government Partnership Ireland National Action Plan 2014-2016,
Action 3.2. http://www.per.gov.ie/minister-brendan-howlin-td-publishes-irelands-first-open-government-partnership-nationalaction-plan/
123
124
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TOWARDS TRANSPARENCY IN LOBBYING: A PUBLIC
REGISTER
Transparency in relation to lobbying will be enhanced with the planned introduction of a public register
of lobbying activities in 2015. The legislation to establish this online database was being debated in
parliament at the time of writing this report. Under the Registration of Lobbying Bill 2014, lobbyists will
be required to register with an oversight agency, the Standards in Public Office Commission, and file
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online returns three times a year outlining their efforts to influence senior decision-makers.
The bill was published in June 2014 after extensive consultations with a wide range of stakeholders
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which informed an initial set of policy proposals and a subsequent draft bill or general scheme.
However, some of the definitions in the draft law as it stands give rise concerns that the planned
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register will not sufficiently capture enough lobbying activities. If this were to be the case when the
bill completes its passage through parliament, it would seriously undermine the main utility of the
register as single and comprehensive database or ‘go to’ point for information on lobbying activity.
The bill does not fully address the revolving door between the public sector and private business,
including lobbying, which poses an ongoing threat to integrity in public decision-making.
Lobbying activity that will be captured in a register of lobbying
The planned register will capture lobbying by paid professional lobbyists working on behalf of clients.
It will also capture lobbying by ‘in-house’ lobbyists from a wide range of interest groups, including
businesses, professional groups, voluntary organisations, trade unions, charitable or non-profit groups
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and faith based organisations.
The bill defines lobbying as communications with lobbying targets in relation to “the initiation,
development or modification of any public policy or of any public programme; the preparation of an
enactment; or the award of any grant, loan or other financial support, contract or other agreement, or
of any licence or other authorisation involving public funds.” Lobbyists are required to register if they
“make or manage or direct the making of” communications with key officials. Communications are
defined to include both direct and indirect communications including oral as well as written
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communications.
These provisions clearly cover policy development, the preparation of laws and the awarding of public
licenses. By focusing purely on the act of communicating, the bill side-steps legal problems faced in
other jurisdictions where communications have to be made in an effort to influence policies or laws
before they are considered to be lobbying. However, communications are not covered if they relate
only to the ‘implementation’ of policy, programmes, legislation or awards, or in relation to matters of a
technical nature. This wording could be problematic because lobbyists are often as concerned with
shaping the implementation of policy as its formulation.
The inclusion of ‘indirect communications’ should allow the register to capture a particular form of
lobbying known as grassroots communications. This is where groups appeal to their members or
members of the public to directly contact decision makers about a particular issue. This sort of activity
131
Registration of Lobbying Bill 2014 http://www.per.gov.ie/regulation-of-lobbying/
http://www.per.gov.ie/regulation-of-lobbying/
133
For more detail on this, see TI Ireland’s submission on the Registration of Lobbying Bill 2014. www.transparency.ie
134
The bill also covers communications on matters related to land development or rezoning. The specific focus on land
development is due to the particular corruption risks in this area highlighted by the Mahon Tribunal into corruption in the
planning process. Department of Public Expenditure and Reform Regulation of Lobbying Legislation - Policy Proposals
Information Note April 2013. Available at: http://www.per.gov.ie/regulation-of-lobbying/
135
Section 5 of the Registration of Lobbying Bill 2014
132
31
would include letter writing campaigns or orchestrated visits to TD’s clinics to press for a particular
cause. It also appears that the register should capture ‘astro-turfing’ activities by so-called grassroots
groups which are funded either entirely or in part by corporate interests to lobby on their behalf.
However, the wording may need to be amended to prevent any unintended exceptions.
The bill requires the registration of lobbying activities that are carried in return for payment (in money
or money’s worth). This means that lobbying carried out on a pro bono basis for a client would not
have to be recorded in the lobbying register. There is potential for abuse here in that consultant public
affairs professionals could attempt to avoid the registration requirements by charging their clients
increased fees for non-lobbying work, while conducting lobbying activities technically free of
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charge.
Exemptions could undermine utility of register as a one stop shop for tracking influence
The bill contains an extensive list of types of communications which are not considered to be lobbying
and do not therefore have to be recorded in the register. These include standard carve-outs for
diplomatic communications or to allow citizens and trade unions to go about their normal business.
However, some of these ‘excepted communications’ are sufficiently broadly worded to give rise to
concerns that they could be exploited by lobbyists to keep their activities out of the public view. In the
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opinion of one expert, the exceptions are “excessively long by international standards”.
Of particular concern is the provision that communications are exempt where they are made by or on
behalf of an employer with not more than 10 employees where these relate to ‘the affairs of the
employer’. This clause could be interpreted to mean that many if not most in-house lobbyists, nonprofit interest groups, trade associations and small businesses would be entirely excluded from the
obligation to register. The Public Relations Institute of Ireland has said that this provision ‘will create
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confusion and could be abused by subsidiary companies and brass plate operations’.
Communications relating to ‘factual information’ which has been requested by a public official are also
exempt from the requirement to register. This provision allows policy makers to seek routine
information without their request automatically triggering a registration requirement. However, if the
clause meant that lobbyists themselves were able to make a subjective determination of what is
factual and therefore exempt from disclosure, the transparency objectives of the law could be
thwarted.
A more general concern is that the extent of the listed exemptions in the bill could collectively diminish
the potential utility of the register as a one-stop-shop that would allow citizens to track influence.
There is a risk that if the register captures only a partial picture of lobbyists’ policy inputs on any
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particular issue, it will give a distorted impression of how policy is actually influenced.
136
See Mc Grath Conor, Submission on General Scheme of the Regulation of Lobbying Bill 2013, 30 May 2013.
http://www.per.gov.ie/regulation-of-lobbying/
137
McGrath Conor, Registration of Lobbying Bill 2014: A Comparison to General Scheme of Regulation of Lobbying Bill,
September 2014.
138
http://www.irishtimes.com/news/politics/new-rules-for-political-lobbyists-will-improve-transparency-in-decision-making1.1971768?page=2
139
McGrath Conor, Registration of Lobbying Bill 2014: A Comparison to General Scheme of Regulation of Lobbying Bill,
September 2014.
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The lobbied – are too many lobbying targets excluded?
Lobbying targets in the bill include six categories of public officials. These ‘designated public officials’
are:
•
•
•
•
•
•
Ministers and Ministers of State
National legislators
MEPs for Irish constituencies
Members of local authorities
Special Advisers
Prescribed public servants
The bill allows for other categories of lobbying targets to be added in the future if this is in the public
interest. While such a phased approach has some merit, it is already apparent that certain significant
lobbying targets are not covered. For example, the category of prescribed public servants will initially
include only Secretary Generals and Assistant Secretaries of government departments and their
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equivalent at local government level. Out of a civil service of 36,000 workers, there are 240 people
in this very senior category. In practice, lobbyists often interact with public officials at significantly
lower grades.
The bill’s definition of lobbying targets also excludes other categories of public officials who are in
practice subject to lobbying, including staff of registered political parties and staff of Oireachtas
members.
According to an official estimate, a total of 1,700 public officials will be designated as lobbying targets
once the bill is enacted. This could be extended by future regulations to include up to 5,000 public
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officials.
Under the bill, anyone carrying out lobbying activities must apply to become a registered person and
supply standard business details to SIPO. Once registered, lobbyists are obliged to file returns three
times a year, at the end of April, August and December, to the Register of Lobbying.
The returns will be available online in a searchable format. They will include the following details:
In the case of professional lobbyists, the standard business details of their clients;
The names and positions of the public officials lobbied;
The subject-matter of the communications and the results sought;
The type and extent of the lobbying activities;
The name of the person who had primary responsibility for the lobbying;
The names of current or former designated public officials employed by or providing services
to the lobbyist;
Additional information which may be prescribed by the Minister.
While the returns will capture core information, there are many other pieces of relevant information
which lobbyists are not required to disclose in the bill. For example, it does not require lobbyists to
declare if they or their employers hold access passes to Leinster House or other public sector
buildings. Nor will returns include any submissions made or documentation shared with public
officials, any financial information about the lobbying activities carried out, any information about
political donations made or work done on behalf of political parties and candidates, public funding
received or memberships of boards or advisory groups.
140
Department of Public Expenditure and Reform, Information note Registration of Lobbying Bill 2014.
http://www.per.gov.ie/regulation-of-lobbying/
Office of the Ombudsman, Request for Tender, Provision of Online Registration System of Lobbying, p 6, 2014. Available at:
https://irl.eu-supply.com/app/rfq/publicpurchase_frameset.asp?PID=80790&B=&PS=1&PP=ctm/Supplier/PublicTenders
141
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In addition, publication of information in a lobbying return can be delayed on what appear to be very
broad grounds which SIPO will decide upon, but only after consulting with a Minister. These include
where their release could have a serious adverse effect on the financial interests of the state, the
national economy and business interests generally. The bill does however give the Minister the power
to require additional information in returns filed at a future date, having regard to the public interest in
appropriate transparency
Overall, the bill’s reporting requirements seek to capture lobbying coming from outside the public
sector. It specifically excludes communications between members of bodies set up at the invitation of
a ministers or a public service body to review, assess or analyse public policy. The bill recognises the
public interest need for transparency in relation to the activities of these kinds of groups, by requiring
the Minister to publish a Transparency Code for their activities. It is not yet clear how many bodies will
be covered by this code.
Powers of SIPO in relation to register of lobbying activities
The planned registration regime will be overseen by SIPO which already has a supervisory role in
relation to ethics in public life and electoral laws. While SIPO has been given additional resources to
establish the online registration system, it is too early to establish whether these will be sufficient to
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allow it to fulfil its new functions.
The bill gives SIPO the power to request further or corrected information and investigate possible
breaches of the law. These include failure to register as a lobbyist or to file a return. Lobbyists who
supply inaccurate or misleading information to SIPO may be removed from the register. Penalties
include on the spot fines of €200 for late filing and up to two years in prison for more serious offenses
such as failing to register. However, it is unclear exactly how an investigation by SIPO would be
triggered in the first place, in the absence of a public controversy. Unlike the first draft of the law, the
bill does not explicitly empower SIPO to inspect records, verify information or receive complaints.
Similarly, the initial draft of the bill empowered the oversight body to publish the names of anyone in
breach of the law. In contrast, the bill prohibits SIPO from identifying individuals.
The bill empowers, but does not require, SIPO to develop a code of conduct aimed at promoting high
professional standards and good practice. It may also issue guidance about the operation of the Act.
The earlier draft law had included a wider explicit mandate for SIPO for outreach and education to
raise awareness of the rationale and requirements of the law.
It is possible that concerns about the bill will be taken on board when the legislation makes its way
through parliament in late 2014/early 2015. In any case, the bill requires the Minister to undertake a
review of the legislation one year after it comes into force. According to an official policy note, this
review will provide an opportunity to ensure that the registration exemptions in the bill do not act as a
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conduit for unregulated or ‘secretive’ lobbying lacking in transparency.
The quality of the data generated by the Irish register of lobbying activities will largely depend on the
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design of the database itself, which is due to go live in May 2015.
142
The additional funding comprises: €250,000 for 2014 and the same for 2015 for pay; and €100,000 for non-pay in 2014 and
€550,000 in 2015. Source: Email correspondence with DPER, 21 November 2014.
143
Department of Public Expenditure and Reform Regulation of Lobbying Legislation – Policy Proposals Information Note April
2013. Available at: http://www.per.gov.ie/regulation-of-lobbying/
144
Office of the Ombudsman, Request for Tender, Provision of Online Registration System of Lobbying, p 6, 2014. Available at:
https://irl.eu-supply.com/app/rfq/publicpurchase_frameset.asp?PID=80790&B=&PS=1&PP=ctm/Supplier/PublicTenders
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Case Study: The Power of Elites - The Impact of the Financial Services
Sector on Public Policy
The international financial services sector plays an important role in the Irish economy,
with more than 250 global financial institutions based in the country. Recent figures show
that the International Financial Services Centre (IFSC) in Dublin employs 33,000 people
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and contributes about €1billion annually in corporation and payroll taxes.
The sector wields considerable influence over government policy through a longestablished industry forum, the IFSC Clearing House Group, which is coordinated by the
Department of the Taoiseach.
The IFSC Clearing House Group consists of large private firms such as JP Morgan, Citi,
State Street, IBF, Barclays, Bank of Ireland, KPMG, Bank of America, Deloitte, AIB,
William Fry, Ernst and Young and PWC. It also includes senior civil servants from key
government departments, major industry associations including the Irish Banking
Federation and state agencies including the Central Bank, the Revenue Commissioners
and the body responsible for overseas investment in Ireland, the IDA.
The fact that the group offers the financial services industry regular and direct access to
policy-makers increases the risk of ‘capture’ of the policy-making process itself.
One member of the Clearing House Group in the early 2000s who was interviewed for
this research described how some of the most powerful economic and legal players in the
country provided technical expertise to the government on complex areas of finance law.
“It’s all done behind closed doors and without appropriate oversight and scrutiny. The
problem is the system we have would be incapable of generating that oversight and
scrutiny.”
The level of influence exerted by the Clearing House Group over more recent aspects of
government policy has become particularly evident in recent years.
Documents released though FOI in April 2012 to Nessa Childers MEP revealed how subgroups of the clearing group met ten times between October 2011 and February 2012 in
order to discuss the European Commission’s proposed introduction of a Financial
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Transaction Tax (FTT). Ms Childers commented that she made her FOI request “after
hearing the exact same false arguments against EU policy areas like the Financial
Transaction Tax from government spokespersons as I heard from the financial industry
147
lobby in Brussels”.
The documents released record the view of the Department of
Finance that “input from the International Financial Services sector will be crucial to
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informing our views on this proposal [FTT]”.
Discussion on the FTT by the Clearing House Group is recorded in minutes released to
The Irish Times under FOI and subsequently viewed by TI Ireland. These documents
show that the Department of Finance had consulted with the financial services industry on
the tax and was “fully aware of industry concerns that the proposal may lead to loss of
business and employment”. The major Irish trade union grouping, ICTU, was in favour of
149
a FTT. It has been estimated that the implementation of an EU wide FTT would provide
Ireland with a net tax gain of €300-550 million per annum. At the time of writing Ireland
145
http://www.ifsc.ie/page.aspx?idpage=6
http://www.independent.ie/opinion/analysis/elaine-byrne-ifsc-living-by-its-own-rules-and-not-in-the-real-world-26850576.html
[Accessed 5 June 2014]
147
http://www.labour.ie/press/2012/10/08/childers-transparency-needed-now-on-ifsc-govt-lobb/ [Accessed 5 June 2014]
148
http://www.scribd.com/doc/91354148/FOI-DeptFinance-Childers; http://www.independent.ie/opinion/analysis/elaine-byrneifsc-living-by-its-own-rules-and-not-in-the-real-world-26850576.html [Accessed 5 June 2014]
149
http://www.ictu.ie/download/pdf/the_case_for_the_ftt.pdf
146
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remains outside the group of European Union states that have said they will start taxing
some financial transactions.
The influence of the Clearing House Group on the domestic budget has also been
revealed in documents released to The Irish Times under FOI. The Irish Times reported
that the group had successfully secured 21 changes to the Finance Bill 2012. These
changes included the introduction of tax breaks for foreign executives with companies
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based in Ireland through the Special Assignee Relief Programme (SARP).
A September 2011 pre-budget submission to the Department of Finance by a sub-group
of the Clearing House Banking and Treasury Working Group recommended the
introduction of SARP regulation with a 100 per cent tax break for foreign executives’
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earnings over €100,000.
SARP was subsequently included in the 2012 Finance Bill
and provided a 30 per cent tax break on earnings for certain employees. This did not
satisfy organisations that sit on the Clearing House group. Following the publication of the
Finance Bill a number of emails were sent by staff at KPMG, a member of the Clearing
House Group, to the Department of Finance. One of the emails referred to a general
sense of disappointment amongst the members of the International Asset Financing subgroup of the Clearing House Group. The Department of Finance response, published in
the Irish Times, stated ‘that 21 other targeted measures for the IFSC’ had been
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introduced. The Finance member of staff states ‘I’m assuming they’re ok? ’
Suggestions were subsequently forwarded to the Department of Finance from KPMG
about how the SARP regulations might be amended. These included the removal of a
clause specifying a limit of 30 days to business activity taking place outside Ireland. This
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change was subsequently adopted into the bill.
The changes made to SARP regulations in the 2012 Finance Bill demonstrate the
influence of the IFSC lobby on government policy and the particularly close level of
collaboration between government departments and the banking sector.
The Taoiseach Enda Kenny has insisted the Government dictates public policies and that
the Clearing House Group is a forum in which to share ideas and research. In the wake of
substantial ongoing criticism of the group, its structure was reformed in 2013 and three
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year term limits were introduced for private sector representatives.
Since 2012,
155
minutes of its meetings are published online three months after they have taken place.
However, minutes of the numerous working groups and sub groups are still not published.
150
http://www.irishtimes.com/news/ifsc-lobby-group-powerful-in-shaping-policy-1.549066 [Accessed 5 June 2014]
Banking and Treasury Group International Asset Financing Sub-group, Pre-Budget Submission to the Department of
Finance, Budget 2012.
152
The Irish Times Weekend Review, Saturday July 7, 2012, Anatomy of a decision: How multinationals influence our tax laws.
[Graphic only available in hard copy of newspaper]
153
http://www.irishtimes.com/news/the-dark-arts-of-political-lobbying-1.531515 [Anatomy of a Decision graphic – only available
in hard copy paper]; FOI record 32.
154
IFSC Clearing House Group minutes, 24 October 2013.
http://www.taoiseach.gov.ie/eng/Work_Of_The_Department/Economic_International_Northern_Ireland/International/Internation
al_Financial_Services/_IFSC_Clearing_House_Group_minutes_from_October_2013.pdf
155
Department of the Taoiseach, IFSC Clearing House Group Annual Report 2013.
http://www.taoiseach.gov.ie/eng/Work_Of_The_Department/Economic_International_Northern_Ireland/International/Internation
al_Financial_Services/IFSC_Clearing_House_Group_Annual_Report_20131.pdf
151
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FOSTERING INTEGRITY
There is a general consensus that while it takes two to lobby, the ultimate responsibility for promoting
integrity in public decision-making rests with those who are lobbied. For this reason, efforts to regulate
lobbying must be embedded within a broader integrity framework in the public sector aimed at
ensuring transparency and accountability in the exercise of public power.
Our research examined existing integrity mechanisms in an effort to answer the following questions:
Is there a robust ethical framework for lobbyists and lobbying targets in the country and to what extent
is it working? Is the onus for integrity placed on both lobbyists and public officials/representatives?
The findings show that when it comes to mitigating lobbying-related risks, Ireland’s integrity
framework is manifestly not fit for purpose.
Substandard safeguards to prevent private interests interfering with public duties
Integrity in Irish public life is promoted through a combination of rules and principles which aim to
minimise the risk of abuse of power. The primary framework is the Ethics Acts, which are founded on
a presumption of that officials will behave with integrity, while recognising that specific measures
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should exist to underpin compliance.
The main thrust of the Ethics Acts and their related codes of conduct is to regulate conflicts of
interest. They compel certain categories of public officials to disclose private interests that might
conflict with their public duties. Interests must be disclosed in advance every year, as well as on an ad
hoc basis if an apparent conflict arises.
Supervision and enforcement of ethics rules at national level is the hands of SIPO, as well as
dedicated Oireachtas committees on members’ interests. At local government level, local authority
staff are primarily responsible for supervising and enforcing conflict of interest provisions as part of
their ethics frameworks.
Generally, conflict of interest provisions are stricter at local level than national level. This disparity was
criticised by the Mahon Tribunal, on the basis that the more senior a public official, the more
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significant the existence of a conflict is from a corruption perspective.
158
At national level, the main disclosure rules apply to: Oireachtas members; holders of public office;
and certain public servants including ministerial special advisers and directors and employees of
designated public bodies. At local level, the rules apply to elected councillors and certain local
authority employees. In addition to these disclosure rules, there is a proliferation of separate and
159
additional disclosure obligations in other public bodies, including for directors of State Boards.
156
The Ethics in Public Office Act 1995 and 2001, the Standards in Public Office Act 2001 and the Local Government Act 2001
comprise the primary ethical framework for managing conflicts of interest in public life. Pt 15 of the Local Government Act 2001
also provides for the investigative and reporting functions of SIPO under the Ethics Acts to be applied to local authority
members and employees.
157
Mahon Tribunal, 2012, Vol. IV, p. 2571.
158
The category ‘officeholders’ comprises: the Taoiseach; the Tánaiste; Ministers; Ministers of State; an Attorney General who
is a member of the Oireachtas; the Chair and Deputy Chair of the Dáil and the Seanad; and Chairpersons of Joint Oireachtas
Committees. The offices of chairman of a committee or joint committee are not currently designated as office holders.
159
Standards in Public Office Commission, Annual Report 2009, p. 22.
37
The types of interests that must be disclosed annually include: gifts; certain assets; interests in land;
remunerated occupations; company directorships; paid work as a political or public affairs lobbyist,
consultant or adviser; and public contracts in which the public official has a direct or indirect interest.
A key weakness of these disclosure provisions is that they are too narrow, and fail to require
disclosure of certain types of interest that are likely to give rise to conflict, be it actual, apparent or
160
potential. For example, they do not require the disclosure of liabilities, including loans from financial
161
institutions or individuals, which are a clear source of conflicts of interests. In addition, some but not
all public officials are obliged to disclose interests held by their spouses or children.
Another weakness in the current regime is that not all the interest declarations are made available for
public viewing. For example, while the annual declarations of Oireachtas members are available
online, the interest declarations of other public officials at national level are not routinely published. At
local government level, employees’ and councillors’ periodic interest declarations are maintained in
registers which are available for public inspection. Only a small number of county councils have taken
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the progressive step of routinely publishing councillors’ interest declarations on their websites.
Inadequacies of existing codes of conduct for managing conflicts of interest
Codes of conduct drawn up under the Ethics Acts aim to supplement the statutory provisions on
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conflicts of interest.
Their existence is a recognition of the fact that disclosure in itself does not
eliminate a conflict of interest, it just makes it known.
The six separate codes set out the overall ethical standards expected from public officials, including
upholding the public interest and acting with transparency, fairness and impartiality and integrity. They
also regulate conflicts of interest in general, as well as specific types of conflicts of interest which
present heightened risks, including gifts, inside information, ancillary and post-termination
employment. The requirements of these codes vary depending on the category of public official they
apply to. (See Table 1, page 40)
While there are no sanctions for breaches of these codes per se, both the courts and SIPO can
consider breaches of the codes in any proceedings or investigations for alleged breaches of the
Ethics Acts.
The only code of conduct that refers explicitly to interactions with lobbyists is that for ‘office holders,’ a
category which includes the Taoiseach (Prime Minister), Tánaiste (Deputy Prime Minister), Ministers,
Ministers of State and other senior figures. This states that contact between officeholders and
lobbyists is to be expected as an integral part of a functioning democracy and that “as guidance, such
dealings should be conducted so that they do not give rise to a conflict between a public duty and a
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private interest”.
In relation to gifts, a range of standards apply depending on the status of the public official. For
example, Oireachtas members are forbidden from accepting gifts where they may pose a conflict of
interest while civil servants are prohibited from receiving benefits of any kind which might be
reasonably seen to compromise their integrity. Local authority employees and councillors are not
allowed to accept any gift other than a modest token. The Mahon Tribunal said existing measures in
160
Mahon Tribunal 2012, Vol. IV, p. 2520.
Mahon Tribunal 2012, Vol. IV, p. 2576.
162
Research by TI Ireland in July 2012 found that five local authorities published interest registers on their websites.
163
These are Civil Service Code of Standards and Behaviour (2008); the Code of Conduct for Office Holders (2003); the Code
of Conduct for Members of Dáil Eireann other than Officeholders (2002); the Code of Conduct for Members of Seanad Éireann
other than Officeholder (2002); the Code of Conduct for Councillors (2004); and the Code of Conduct for Employees (2007).
There are also other statutory codes under other legislation.
164
Code of Conduct for Officeholders, 2.2.5.
161
38
relation to gifts and benefits are inadequate in view of the dangers they pose from a corruption
165
perspective. It recommended that all gifts/benefits be banned.
Only some of the codes deal with the use or abuse of official confidential information. Oireachtas
members and councillors are effectively prohibited from using inside or confidential information for
their own personal gain or that of others. However, there is no guidance in the code for office holders
regarding the use of inside information, despite the fact that such senior public officials routinely have
166
access to confidential, valuable and privileged information.
Finally, no statutory code of conduct exists for the wider civil and public service under the ethics laws,
although state boards are required to introduce non-statutory codes under the Code of Practice for
167
the Governance of State Bodies which is published by the Department of Finance.
168
SIPO has voiced concerns about the low level of awareness of the codes. For its part, the Mahon
Tribunal recommended increased emphasis on prevention through not only training, but also
169
education and research both locally and nationally.
In addition, a recent evaluation by the Council
of Europe concluded that the current regulatory structure for ethical standards and conduct of
members of parliament is a rather complex patchwork, including constitutional principles, legislative
norms, soft law provisions and guidelines. It recommended that that the “existing ethics framework be
replaced with a uniform and consolidated values-based normative framework encompassing the
ethical conduct of members of parliament - including their staff as appropriate - covering various
situations of conflicts of interest (gifts and otheradvantages, third party contacts including lobbyists,
accessory activities and post-employment situations etc.) with the aim of providing clear rules
170
concerning their expected conduct.”
More fundamentally in relation to the various codes for all public officials, SIPO has criticised them as
“an inadequate expression of the standards by which all public servants and public representatives
should abide.” It says they should be replaced by a clear high level statement of ethical principles
which should be incorporated into the Ethics Acts as public service values. Any failure to abide by
171
them should be something that could be cited in complaints under the Ethics Acts.
165
Mahon Tribunal, 2012, Vol. IV, p 2594.
Mahon Tribunal, 2012, Vol. IV, p 2594.
http://www.stateboards.ie/stateboards/code_of_practice.htm
168
Standards in Public Office Commission, Annual Report 2006, p 6.
169
Mahon Tribunal, 2012, Vol. IV, p 2606.
170
GRECO,Fourth Evaluation Round, Corruption prevention in respect of members of parliament, judges and prosecutors,
October 2014. http://www.coe.int/t/dghl/monitoring/greco/default_en.asp
171
Standards in Public Office Commission, Annual Report 2009, p 23.
166
167
39
Table 1: Categories of risks to integrity in public decision-making
that are regulated in the main codes of conduct for public life 172
GIFTS
INSIDE
INFORMATION
PRE-TERM
EMPLOYMENT
Office holders

 174

Parliamentarians





Civil Servants 176





Special Advisers




Local
Government
Employees








Local
Government
Councillors
POST-TERM
EMPLOYMENT
SIMULTANEOUS
EMPLOYMENT 173
OFFICIAL TYPE

175
178


177

179

172
This table highlights the key interests regulated in the six codes of conduct published under the Standards in Public Office
Act 2001 the Local Government Act 2001.
173
None of the codes for public officials specifically mentions simultaneous employment as a lobbyist and a public official.
However, this is covered by the general prohibitions in the codes against ancillary employment.
174
Office holders are told to give regard as appropriate to the Codes of Conduct for members of Dáil Éireann and Seanad
Éireann.
175
Office holders are cautioned to avoid any real or apparent conflict of interest with the office they formerly occupied when
taking up appointments on leaving office.
176
Civil servants occupying ‘designated positions’.
177
Barred from holding positions that are ‘incompatible’ with their role as a special adviser: http://www.sipo.gov.ie/en/Codes-ofConduct/Office-Holders/Code-of-Conduct-for-Office-Holders-.pdf (appendix 5)
178
Applies to ‘designated positions’.
179
Provision that they must not hold a position that could be regarded by a member of the public as undermining public
confidence in local government or engage in a gainful occupation which might conflict with the interests of the local authority,
or be inconsistent with the discharge of his or her duties as a local authority employee
http://www.environ.ie/en/Publications/LocalGovernment/Administration/FileDownLoad,8776,en.pdf
40
Shortcomings in supervision and enforcement of ethics rules
Several serious shortcomings with the system for investigating breaches of the rules under the Ethics
Acts make it easier for individuals who do not register their interests to evade detection or sanction.
For example, the fact that complaints against Oireachtas members are investigated by committees
made up of fellow members is inherently problematic. At local level the enforcement regime is even
180
more inadequate, with no formal complaints or investigative procedure.
For its part, SIPO lacks a number of powers which would increase its effectiveness. A particularly
acute criticism of the current system is that SIPO must receive a written complaint before its full
investigative powers under the Ethics Acts are activated. In the absence of a complaint, SIPO is
unable to appoint an inquiry officer to gather evidence and conduct interviews that would help it to
decide whether an investigation is warranted.
This may explain SIPO’s formal reluctance to use its powers to investigate on its own initiative, save
181
in the case of “last resort”.
Even when an investigation is activated, SIPO is hampered by the fact
that all six of its members – most of whom already have full-time jobs – must participate in every
investigation.
There are also substantial restrictions on who can actually make complaints to the various bodies for
breaches of Ethics Acts. For example, while anyone may submit a complaint about an officeholder,
only Oireachtas members or Ministers can complain about civil servants.
The number of complaints received by SIPO alleging breaches of the Ethics Acts has been
traditionally very low. SIPO received 488 valid complaints since the laws were introduced almost 20
years ago, and has completed only nine investigations. (See Table 2, page 42)
A number of factors may contribute to the low level of complaints, including:
•
•
•
•
a cultural reluctance to ‘inform’;
a lack of public confidence in the system to handle complaints effectively;
low levels of awareness of the interest disclosure rules:
the complexity of the ethics laws, in particular in relation to complaints about ‘specified
acts’;
In addition, the fact that only declarations of interest by some categories of public officials are
published means that in practical terms it is often impossible to even identify whether conflicts of
interests could arise.
Concerns have also been expressed that SIPO itself, burdened by complex legislation that is difficult
182
if not impossible to implement, is doing little to restore public confidence in the system.
For its part, SIPO has repeatedly sought enhanced statutory powers and organisational reforms to
allow it to operate more efficiently. It has also called for an impact analysis to assess how the ethics
laws and other integrity measures have impacted on the behaviour of public representatives and
183
public servants.
The Mahon Tribunal made extensive recommendations aimed at strengthening both interest
disclosure rules and the powers of the various oversight bodies at both national and local level. It has
180
Mahon Tribunal 2012, Vol. IV, pp 2599 – 2607
SIPO Annual Report 2007,
182
Hughes Ian, Clancy Paula, Harris Clodagh, Beetham David, Power to the People? Assessing Democracy in Ireland, 2007, p
380.
183
Standards in Public Office Commission,Annual Report 2004.
181
41
also called for all disclosures by elected and senior appointed public officials to be published. The
government says it is considering the Mahon Tribunal’s recommendations as part of a wholesale
review of the ethics framework. Draft legislation is due to be published in late 2014/early 2015.
Sanctions for breaches of rules failing to deter unethical behaviour ?
The most serious sanction facing Oireachtas members including ‘officeholders’ are motions of
censure or suspension by either house of the Oireachtas. The Mahon Tribunal expressed ‘deep
concern’ about this situation, judging it ‘highly unlikely’ that the Dáil would ever agree to impose a
sanction on a Minister or the Taoiseach. It concluded that the sanctions for elected representatives do
184
not act as a sufficient deterrent.
There are no specific sanctions in the Ethics Acts for civil or public servants, although disciplinary
actions may be taken if the officials have also breached their contracts. In addition, the Director of
Public Prosecutions may bring criminal charges under the Ethics Acts on grounds including failure to
cooperate with SIPO or hindering its work.
At the moment, only local councillors can face criminal charges for failing to disclose an interest or
making a false or misleading declaration. The Mahon Tribunal has expressed concern about this
lacuna in the law. It recommended that failure to make an interest disclosure, as well as the making of
a false or misleading disclosure, should also be a criminal offence for all public officials under the
185
Ethics Acts.
Table 2: Complaints to SIPO and Own-Initiative Enquiries
under the Ethics Acts from 1995 to 2013 186
RECEIVED
COMPLAINTS
761
VALID
COMPLAINTS
488
ENQUIRIES (SELFINITIATED IN ABSENCE
OF COMPLAINT)
29
INVESTIGATIONS
COMPLETED
9
FILES SENT TO DIRECTOR
OF PUBLIC
PROSECUTIONS
2
Source: SIPO correspondence, 2014
Failure to control the ‘revolving door’ phenomenon
While the movement of personnel between the public and private sectors can have positive
outcomes, these so-called ‘revolving door’ practices pose a risk to fairness and impartiality in public
decision-making. Most of these risks are related to conflicts of interests. For example, public officials
might use their power while in office to give preferential treatment to a business in consideration of
future employment. Likewise, public officials who move directly into private business might misuse
their privileged access to and influence over their former colleagues to benefit that business. These
184
Mahon Tribunal 2012, Vol. IV, p 2606.
Mahon Tribunal, 2012, Vol. IV p. 2607.
Complaints received by SIPO and its predecessor the Public Office Commission under the Ethics Acts. Source: SIPO
correspondence with lead researcher, October 2014.
185
186
42
risks are generally controlled by both pre-term and post-term employment restrictions, known as
moratoria or ‘cooling-off’ periods.
There are no pre-term employment restrictions in place in Ireland, a situation that allows lobbyists to
move freely into the public sector, where they could allow their previous private sector interests or
187
contacts to influence their work.
When it comes to post-term employment, the picture is more mixed. The issue is dealt with in the
codes of conduct for office holders, civil servants and local authority employees. Post-term
employment by Oireachtas members and local councillors is not regulated in their codes of conduct.
It is particularly striking that office holders - a category which includes Ministers - are subject to less
regulation than certain civil servants and local authority officials in this area. Office holders are
advised in their code of conduct only to be careful to avoid any real or apparent conflict of interest with
188
their former public office in taking up employment on leaving office. (See Table 2)
In contrast, designated civil servants and local authority officials are required to seek approval before
taking jobs in the private sector for a 12 month period following their retirement or resignation where
189
this might cause a conflict of interest.
The Mahon Tribunal highlighted the inherent weakness in the existing approach to regulating postterm employment by way of codes of conduct. This is because the codes cease to have effect once
190
an individual leaves public office – the very moment when their provisions become relevant.
It is quite common for former Ministers, TDs, senior public servants and special advisers to move into
business as well as the professional lobbying sector. As lobbyists, they bring with them their insider
knowledge of how politics works as well as their personal contacts.
Those that have turned to professional lobbying include former Fianna Fáil minister Noel Dempsey
who has set up his own public affairs consultancy and former Fine Gael leader and government
minister Alan Dukes, a longstanding consultant on public affairs for Wilson Hartnell PR.
Among others are former Progressive Democrats junior minister Liz O’Donnell, who has worked as an
occasional public affairs consultant; and former Fianna Fáil TD Jim Glennon who currently works for
Edelman PR. Most notably, former junior minister, Tom Parlon, ceased to work as Minister of State
responsible for public building projects in June 2007 and was appointed Director General of the
Construction Industry Federation (CIF) the following month. The CIF is a significant interest group
whose members benefitted from an unprecedented property boom during the previous decade.
Former political party officials who have left public service and gone on to provide public affairs advice
to clients include Martin Mackin, former general secretary of Fianna Fáil, and Jackie Gallagher, former
special adviser to former Taoiseach Bertie Ahern and a founder of Q4 Public Relations.
187
OECD, 2014, p. 63 (forthcoming).
Code of Conduct for Officeholders 2003, par 2.2.4
189
Civil Servants’ Code of Standards and Behaviour (2004) par 20.02 and Code of Conduct for Employees 2007 10.05
190
Mahon Tribunal, 2012, Vol. IV, p 2598
188
43
Revolving door restrictions not robust enough
The Registration of Lobbying Bill 2014 introduces limited post-term employment restrictions for senior
public officials wishing to take up lobbying work within a year of leaving the public service.
During this period they must obtain approval from SIPO before lobbying the public body where they
worked, including lobbying their former colleagues, even if these individuals have moved to a different
public body. These restrictions apply to Ministers and Ministers of State, special advisers and
prescribed civil servants.
The limited nature of the post-employment restrictions for public officials represents in the bill stands
in contrast to the earlier policy proposal in this area which had provided for a two year cooling-off
period. However, the government has said it intends to introduce general post-term employment
restrictions as part of planned reforms of the ethics laws.
EQUALITY OF ACCESS: LEVELLING THE PLAYING FIELD
Ensuring that all stakeholders have fair and equitable access to decision-making processes can lead
to balanced policy-making in the public interest. Our research explored whether there are sufficient
opportunities for diverse participation and contribution of ideas and evidence by a broad range of
interests that lead to policies, laws, and decisions which best serve wider society. The findings in this
area are mixed.
It is clear that in practice stakeholder input is routinely provided for across a range of public bodies.
There was considerable consensus among public affairs consultants and in-house lobbyists
interviewed for this research that the Irish policy-making system is generally open to their input and
expertise. However, many interviewees also noted that the extent of access varies somewhat
depending on the culture of different government departments as well as the attitudes of particular
senior civil servants and Ministers.
A set of guidelines for public bodies on how to conduct better public consultations was issued in
191
2005.
These are a practical tool setting out various options for consultations, rather than a
prescriptive framework. As part of this research, standard questions were submitted to all sixteen
government departments on their policies and practices in relation to consultations and the
establishment and operation of expert and advisory groups. Of the four departments which replied,
192
two cited the government’s consultation guidelines.
Many government departmental websites advertise opportunities for stakeholder consultation and
193
provide details on how to participate. The types of participation techniques routinely used in drafting
primary laws include informal consultations with selected groups; public notices calling for comment;
the setting up of advisory groups; public meetings and the broad circulation of proposals for
194
comment.
Those departments that are involved in service delivery are particularly experienced in running
complex multi-stakeholder consultations. These include the Department of Social Welfare which
191
Reaching Out – Guidelines for Public Sector Bodies. Available at
http://www.taoiseach.gov.ie/eng/Publications/Publications_Archive/Publications_2011/?pageNumber=2
192
These were the Department of Social Protection and the Department of Foreign Affairs and Trade. The other departments
which replied to TI Ireland’s queries were the Department of Defence and the Department of Education and Skills. All
government press departments were contacted by phone and emailed the questions in June 2014. A further round of follow up
inquiries by telephone phone and email were made in July 2014.
193
OECD, 2014, p. 20 (forthcoming).
194
OECD, 2014, p. 20, (forthcoming).
44
conducts roadshows, customer panels and budget forums, and the department of Education and
Skills which has established dedicated telephone lines to handle feedback on strategy proposals.
At local government level, consultations are also routine, and there are examples of local authorities
195
running innovative online consultation and civic engagement platforms.
At both national and local
level, mandatory consultations are required under environmental and planning laws.
While examples exist of imaginative and inclusive consultation processes, there are also examples of
public consultations which amount to little more than a ‘box-ticking’ exercise; usually in the form of
webpage notice calling for comments to be submitted on a document by a certain deadline.
Overall, there appears to be a degree of informality in relation to stakeholder consultations that gives
policy makers considerable flexibility. However, too much informality can in practice lead to a lack of
rigor in terms of ensuring balanced stakeholder input into policy or legislation.
In terms of the stakeholder input once a draft law goes before parliament, Oireachtas committees
have considerable discretion. It is up to each committee to decide whether to seek submissions on a
particular bill. Committees may publish on the Oireachtas website a general request for written and/or
oral submissions or may directly invite individuals or groups. As part of their wider non-legislative work
programmes, they may also invite evidence from interest groups, meet witnesses, or invite
government officials in on specific issues.
Parliamentary rules were recently changed to allow legislators to consider early proposals for
legislation – these are preliminary texts which are referred to as General Schemes of bills. These can
now be forwarded to relevant committees for consideration on either a mandatory or discretionary
basis. The government says it intends that this pre-legislative scrutiny process will “become more the
196
norm”.
It is too early to assess whether this new system has led to enhanced parliamentary scrutiny of laws.
Certainly, it provides interest groups with a chance to have input into laws at an earlier stage.
There are no statutory rules or guidelines to ensure that the composition of advisory or expert groups
is balanced, including maintaining a balance between civil society and private sector representatives
where this is appropriate. In addition, lobbyists as well as corporate executives can freely sit on such
groups in a personal capacity. Some expert and advisory groups make information about their
meetings, including agendas and minutes, available proactively. Much of this sort of information
197
would be available under the Freedom of Information Act.
195
See http://consult.fingal.ie/home and http://www.yourdublinyourvoice.ie
Ireland, Fourth Evaluation Round, Questionnaire Part 1, Corruption prevention in respect of parliamentarians, 2014. (Irish
government document prepared for the Group of States Against Corruption)
197
OECD 2014, p 66 (forthcoming).
196
45
5. METHODOLOGY NOTE
This report is part of the European Commission funded ‘Lifting the Lid on Lobbying’ project, which
sees 19 European countries assess the situation with regard to lobbying and its regulation in their
198
country.
The report aims to:
Assess existing lobbying regulations, policies and practices in Ireland
Compile evidence about corruption risks and incidences related to lack of lobbying control
Highlight promising practice around lobbying found in Ireland
Provide recommendations and solutions for decision-makers and interest representatives in
the public and private sector
Definitions
The definition of lobbying for this project is “Any direct or indirect communication with public officials,
political decision-makers or representatives for the purposes of influencing public decision-making
199
carried out by or on behalf of any organised group.”
‘Lobbyists’ can include not only professional lobbyists, but private sector representatives (in-house
lobbyists),
public
affairs
consultancies,
representatives
from
NGOs,
corporations,
industry/professional associations, trade unions, think tanks, law firms, faith-based organisations and
200
academics.
We believe that regulation should capture all who lobby professionally and our definition purposefully
excludes individual citizens lobbying on their own behalf as this is considered part of a normal healthy
democratic process and not something which should be unduly regulated.
Data Collection and Validation
This research was carried out by Transparency International Ireland during the period from March to
October 2014. The researchers drew on numerous secondary sources including: academic journals;
reports of tribunals of inquiry; documents and reports from oversight agencies and governmental and
international bodies; research by non-governmental organisations and individuals; and submissions
made by a range of organisations on the government’s proposals for a system of lobbying registration
in Ireland.
This secondary data was complemented by primary data obtained from 18 in-depth interviews with
civil servants and former civil servants, politicians and professional and in-house lobbyists and
experts in the field of lobbying. Interviews were particularly useful for finding out additional information
not on the public record, and for gathering evidence more generally on what is happening in practice.
In a number of cases, anonymity was requested by interviewees because of the sensitivity of the
198
The participating countries are Austria, Bulgaria, Cyprus, Czech Republic, Estonia, France, Germany, Hungary, Ireland,
Italy, Latvia, Lithuania, the Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, and the United Kingdom.
199
This definitions draws heavily on the Sunlight Foundation Lobbying Guidelines
(http://sunlightfoundation.com/blog/2013/12/03/announcing-sunlights-international-lobbying-guidelines/), the OECD Draft
Report on Progress made in implementing the OECD Principles for Transparency and Integrity in Lobbying (2014, forthcoming)
and Council of Europe Parliamentary Assembly Recommendation 1908 (2010) on lobbying in a democratic society.
200
See Transparency International (2012) Regional Policy Paper ‘Lobbying in the European Union: Levelling the Playing Field’,
accessible online at http://www.transparency.de/fileadmin/pdfs/Themen/Politik/ENIS_Regional_Policy_Paper_Lobbying.pdf
46
information and this was granted. A small expert group was established to assist TI in carrying out this
research. The members of this group are listed in the acknowledgements.
The research was primarily qualitative; however a quantitative element was also included in order to
evaluate the robustness and efficacy of national regulations and self-regulation mechanisms around
201
lobbying and to allow for some comparison across the countries.
To this end, a set of 65 indicators
were scored by the researcher, based on the qualitative information gathered through the research.
A 3-point scale was used to score the indicators, with a minimum score of 0 and a maximum score of
202
2.
In order to calculate the overall scores for the country, and for the three dimensions of
Transparency, Integrity and Equality of Access, a simple aggregation was performed. Specifically, a
total score (as a percentage) was calculated for 10 sub-dimensions (access to information; lobbying
registration systems; verification and oversight mechanisms; legislative footprint; pre- and postemployment restrictions; codes of conduct/ethics for policymakers; codes of conduct/ethics for
lobbyists; self-regulation of the industry; consultation and participation mechanisms in public-decisionmaking; and expert and advisory group composition). A simple average was then calculated to
provide an overall score for the three key dimensions of Transparency, Integrity and Equality of
Access. The overall country score was calculated by averaging these three dimensions.
Given that the timing of this research coincided with the publication of the Registration of Lobbying Bill
2014, the scoring exercise was calculated twice – both with and without the draft bill. The completed
questionnaire and scores are included as an annex on the online version of this report, which is
available at www.transparency.ie.
201
A regional report compiling and comparing the national results is foreseen for publication in early 2015.
In a limited number of cases, where no logical intermediary position exists, only a minimum value of 0 and a maximum value
of 2 are offered.
202
47
Transparency International Ireland
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